VOLUME  IV 


MAY,  1914 


RECENT 

LEGAL  DECISIONS 


REPRINTED  FROM  THE 


PUBLISHED  BY  THE 


electrical  record 

The  Gage  Publishing  Co.,  Inc.,  114  Liberty  St. 

NEW  YORK 


v 


V 


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RECENT 

LEGAL  DECISIONS 


OF  INTEREST  TO 

ELECTRIC  LIGHT,  POWER 

AND 

STREET  RAILWAY  PLANTS 

AND 

TELEPHONE  COMPANIES 


PUBLISHED  BY  THE 

ELECTRICAL  RECORD 

The  Gage  Publishing  Co.,  Inc.,  114  Liberty  St. 

NEW  YORK 


Copyright  1914,  by 
THE  GAGE  PUBLISHING  CO..  Inc. 


A 


INTRODUCTION 

This  book  is  a  reprint  of  the  series  of  articles  on 
Recent  Legal  Decisions  that  appeared  regularly  in  the 
Electrical  Record  from  June,  1913,  to  May,  1914, 
inclusive.  The  Legal  Decisions  that  will  appear  in  each 
issue  of  the  Electrical  Record  from  June,  1914,  to 
May,  1915,  inclusive,  will  be  reprinted  in  a  fifth  volume, 
similar  to  this  one,  to  be  issued  in  May,  1915.  These 
volumes  are  not  for  sale,  but  are  given  free,  upon  re¬ 
quest,  to  subscribers  to  the  Electrical  Record.  The 
Electrical  Record  is  issued  monthly.  The  subscrip¬ 
tion  price  is  $2.00  a  year.  It  is  published  by 

THE  GAGE  PUBLISHING  CO.,  Inc., 
114  Liberty  street,  New  York. 

May,  1914. 


nr 

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INDEX 


Name  of  Case  Page 

Abandoned  Insulator,  Liability  for  Injuries  Caused  by  23 

Acceptance — Sale  of  Generator .  30 

Accident,  Cause  of — Falling  Globe — Burden  of  Proof..  50 

Accident,  Fuse  Box — Evidence .  23 

Accident,  Open  Switch .  46 

Accidents,  Cost  of — Construction  Contract .  33 

Account,  Ledger  as  Evidence  of .  31 

Alabama  Statute — Duty  of  Electric  Companies  as  to 

Employees — Defective  Appliance .  66 

Appliance,  Defective — Alabama  Statute — Duty  of  Elec¬ 
tric  Companies  as  to  Employees .  66 

Appropriation  of  Water  Power — Power  Companies’ 

Riparian  Rights .  37 

Arbitration  as  to  Rates — -Confiscatory  Rates .  41 

Assessment  of  Electrical  Companies .  27 

Assisting  Electrical  Employee — Known  Danger .  1 

Assumed  Risk — Duty  to  Guard  Crossing  Wires .  59 

Assumed  Risks — Light  and  Telephone  Wires .  4 

Authority  to  Issue  Electric  Light  Bonds .  11 

Battery,  Sale  of  Storage — Surety  Bond  for  Purchase 

Price  .  32 

Bonds,  Authority  to  Issue  Electric  Light .  11 

Bond,  Surety,  for  Purchase  Price — Sale  of  Storage 

Battery .  32 

Bonds,  and  Stock,  Ownership  of  Electrical  Company’s  25 

Broken  Wire — Contact — Proximate  Cause .  21 

Broken  Wire — Contributory  Negligence .  31 

Broken  Wire — Evidence  of  Cause  and  Time  of  Break.  37 

Broken  Wire — Notice  to  Company .  66 

Buildings,  Mechanics’  Lien  for  Wiring .  28 

Burden  of  Proof — Falling  Globe — Cause  of  Accident..  50 
Burden  of  Proof  of  Contributory  Negligence — Dam¬ 
ages  to  Property .  32 

Buying,  Liability  to — Selling  Use  of  Poles — Company’s 

Employees  .  38 

Care  Required — Escape  of  Current  Into  House .  52 

Care  Required — Wire  on  Highways .  61 

Cause  of  Injury,  Proximate .  39 

Cause  of  Accident — Falling  Globe — Burden  of  Proof..  50 

Cause,  Proximate .  12 

Cause,  Proximate — Broken  Wire — Contact .  21 

Cause,  Proximate  —  Contact  —  Charged  Guy  Wire  in 

Street . 29 

Cause  and  Time  of  Break,  Evidence  of — Broken  Wire  37 
Charged  Guy  Wire  in  Street  —  Contact  —  Proximate 

Cause  .  29 

Children,  Company’s  Knowledge  of  Danger  to .  15 

Circumstantial  Evidence .  18 

City  Council’s  Power — Fixing  Rates .  11 

I 


Name  of  Case  Page 

City’s  Liability  for  Injuries .  17 

Claims  to  Light  Plant,  Rival .  24 

Companies,  Rights  of — Discontinuance  of  Service....  47 
Company,  Duty  of  Railroad  —  Light  Wire  Sagging 

Over  Railroad  Track .  39 

Company’s  Employees — Selling  Use  of  Poles — Liabil¬ 
ity  to  Buying .  38 

Company’s  Knowledge  of  Danger  to  Children .  15 

Competition  Between  Electrical  Companies — Individual 

Privileges — Franchises  and  Powers  Distinguished.  42 

Competition  with  Private  Plant,  Municipal .  65 

Complaint — Penalty  for  Failure  to  Install .  7 

Condemnation — Public  Necessity — Surplus  Power....  10 

Condemnation  of  Right  to  Cut  Trees .  8 

Condemnation  Procedure .  20 

Condemnation,  Right  of .  47 

Condemnation,  Right  of — Private  Purpose .  52 

Confiscatory  Rates — Arbitration  as  to  Rates .  41 

Construction — Contract  of  Sale  of  Electricity .  43 

Construction — Contract  for  Electrical  Supplies .  36 

Construction — Inspection  Contract .  48 

Construction  Contract — Cost  of  Accidents .  33 

Construction  of  Franchise  —  Lighting  Private  Resi¬ 
dences  .  1 

Construction  and  Contract  Sale — Electric  Outfit .  45 

Constructive  Notice — Lowered  Street  Lamp .  6 

Consumer,  Injuries  to,  by  Overcharged  Wires .  54 

Contact — Broken  Wire — Proximate  Cause .  21 

Contact  —  Proximate  Cause  —  Charged  Guy  Wire  in 

Street  .  29 

Contact  of  Power  and  Telephone  Wires — Guard  Wires  40 
Contact  of  Wires — Destruction  by  Fire — Damages....  21 
Contact  of  Wires — Hidden  Danger — Rubber  Gloves..  .  2 

Contract,  Construction — Cost  of  Accidents .  33 

Contract  for  Electrical  Supplies — Construction .  36 

Contract,  Inspection — Construction .  48 

Contract  of  Sale  of  Electricity — Construction .  43 

Contract  Sale,  Construction  and — Electric  Outfit .  45 

Contracts — Ratification  .  9 

Contractor,  Injuries  Caused  by  Independent .  26 

Contributory  Negligence .  45 

Contributory  Negligence .  55 

Contributory  Negligence — Broken  Wire .  31 

Contributory  Negligence — Wire  on  Sidewalk .  20 

Contributory  Negligence,  Burden  of  Proof — Damages 

to  Property .  32 

Cost  of  Accidents — Construction  Contract .  33 

Crossing  Wires,  Duty  to  Guard — Assumed  Risk .  59 

Current,  Escape  of,  Into  House — Care  Required .  52 

Current,  Wrongfully  Cutting  Off .  56 

Cutting  Off  Current,  Wrongfully .  56 

Dam,  Right  to  Construct .  55 

Damages — Contact  of  Wires — Destruction  by  Fire....  21 

Damages,  Excessive — Personal  Injuries .  3 

Damages  to  Property — Burden  of  Proof  of  Contribu¬ 
tory  Negligence .  32 

Danger,  Hidden — Contact  of  Wires — Rubber  Gloves..  2 

II 


Name  of  Case  Page 

Danger,  Known  —  Persons  Assisting  Electrical  Em¬ 
ployee  .  1 

Danger  to  Children,  Company’s  Knowledge  of .  15 

Dangerous  Pole  in  Street — Liability .  33 

Dangerous  Proximity  of  Wires — Evidence .  17 

Defective  Appliance — Alabama  Statute — Duty  of  Elec¬ 
tric  Companies  as  to  Employees .  66 

Defective  Electrical  Machine — Injuries  to  Servant....  38 

Defective  Insulation .  56 

Delivery,  Time  of — Sale  of  Electric  Motors .  36 

Destruction  by  Fire — Contact  of  Wires — Damages...  21 

Discontinuance  of  Service — Rights  of  Companies .  47 

Discrimination  —  Installation  of  Transformers  —  Ex¬ 
penses  .  60 

Disobedience  of  Orders — Effect .  22 

Domain  Proceedings,  Eminent .  7 

Duty  of  Electric  Companies  as  to  Employees — Defec¬ 
tive  Appliance — Alabama  Statute .  66 

Duty  of  Railroad  Company — Light  Wire  Sagging  Over 

Railroad  Track .  39 

Duty  to  Guard  Crossing  Wires — Assumed  Risk .  59 

Duty  to  Inspect,  Lineman’s — Safe  Place  to  Work .  49 

Duty  to  Inspect  Wires .  58 

Duty  to  Instruct  Inexperienced  Servant .  64 

Duty  to  Use  Rubber  Gloves .  18 

Duty  Toward  Mere  Licensee .  23 

Effect — Disobedience  of  Orders .  22 

Effect  of  Public  Utilities  Act — Rate  Fixing .  41 

Electric  Companies,  Duty  of,  as  to  Employees — De¬ 
fective  Appliance — Alabama  Statute .  66 

Electric  Light  Bonds,  Authority  to  Issue .  11 

Electric  Light  Company,  Interference  of  Equity  Court 

with  Operation  of .  17 

Electric  Light  Fixtures,  Lien  for  Installing .  3 

Electric  Light  Switch,  Exposed  —  Liability  of  Land¬ 
lord  .  49 

Electric  Line  on  Rural  Highway,  Maintenance  of — Ne¬ 
cessity  for  License... . .  6 

Electric  Outfit — Construction  and  Contract  Sale .  45 

Electric  Plant  a  Place  of  Business .  16 

Electrical  Companies,  Assessment  of .  27 

Electrical  Companies,  Competition  Between — Individual 

Privileges — Franchises  and  Powers  Distinguished  42 
Electrical  Company’s  Pole,  Use  of  by  Telephone  Com¬ 
pany  . 34 

Electrical  Company’s  Stock  and  Bonds,  Ownership  of  25 

Electrical  Engineer  as  Expert  Witness .  66 

Electrical  Installation,  Test  of — Waiver .  10 

Electrical  Machine,  Defective — Injuries  to  Servant...  38 

Electrical  Supplies — Liability  of  Municipalities .  27 

Electrical  Supplies,  Contract  for — Construction .  36 

Electrical  Supplies,  Municipalities  and  the  Sale  of .  13 

Electricity,  Contract  of  Sale  of — Construction .  43 

Eminent  Domain  —  Public  Use  —  Manufacturing  Cor¬ 
poration  .  63 

Eminent  Domain  Proceedings . .  . .  . .  7 

Employees,  Company’s — Selling  Use  of  Poles — Liabil¬ 
ity  to  Buying .  38 


III 


Name  of  Case  Page 

Employees,  Duty  of  Electric  Companies  as  to — Defec¬ 
tive  Appliance — Alabama  Statute .  66 

Engineer,  Electrical,  as  Expert  Witness .  66 

Equity  Court,  Interference  of,  with  Operation  of  Elec¬ 
tric  Light  Company .  17 

Escape  of  Current  Into  House — Care  Required .  52 

Evidence — Dangerous  Proximity  of  Wires .  17 

Evidence — Fuse  Box  Accident .  23 

Evidence — Negligence  of  Superintendent .  34 

Evidence — Circumstantial  .  18 

Evidence  of  Account,  Ledger  as .  31 

Evidence  of  Cause  and  Time  of  Break — Broken  Wire. .  37 

Excessive  Damages — Personal  Injuries .  3 

Existence  of  Relationship — Master  and  Servant .  62 

Expenses — Discrimination — Installation  of  Transform¬ 
ers  .  60 

Exposed  Electric  Light  Switch — Liability  of  Landlord  49 

Failure  to  Install,  Penalty  for — Complaint .  7 

Falling  Globe — Cause  of  Accident — Burden  of  Proof..  50 
Fire,  Destruction  by — Contact  of  Wires — Damages..  . .  21 

Fixing  Rates — City  Council’s  Power .  11 

Fixing  Rates — Effect  of  Public  Utilities  Act .  41 

Fixtures,  Lien  for  Installing  Electric  Light .  3 

Forfeiture  of  Franchise  for  Non-User .  9 

Franchise,  Construction  of — Lighting  Private  Resi¬ 
dences  .  1 

Franchise,  Forfeiture  of,  for  Non-User .  9 

Franchise,  Nature  of . 27 

Franchise,  Term  of .  44 

Franchises  and  Powers  Distinguished  —  Competition 
Between  Electrical  Companies  —  Individual  Priv¬ 
ileges  .  42 

Fuse  Box  Accident — Evidence .  23 

Generation  of  Power — Public .  51 

Generator,  Sale  of — Acceptance .  30 

Globe,  Falling — Cause  of  Accident — Burden  of  Proof  50 

Gloves,  Duty  to  Use  Rubber .  18 

Guard  Crossing  Wires,  Duty  to — Assumed  Risk .  59 

Guard  Wires — Contact  of  Power  and  Telephone  Wires  40 

Guy  Wire  in  Street .  22 

Guy  Wire  in  Street,  Charged  —  Contact  —  Proximate 

Cause  .  •••  •  •  •  »•  . . . . .  29 

Height  of  Wires — Ordinary  Travel .  24 

Hidden  Danger — Contact  of  Wires — Rubber  Gloves..  2 
High  Power  Wire,  Small  Wire  Falling  Across — Lia¬ 
bility  .  35 

Highway,  Maintenance  of  Electric  Line  on — Necessity 

of  License .  6 

Highways,  Wires  on — Care  Required .  61 

House,  Escape  of  Current  Into — Care  Required .  52 

Independent  Contractor,  Injuries  Caused  by .  26 

Individual  Privileges — Competition  Between  Electrical 

Companies — Franchises  and  Powers  Distinguished  42 

Inexperienced  Servant,  Duty  to  Instruct .  64 

Injuries  Caused  by  Abandoned  Insulator,  Liability  for  23 

Injuries  Caused  by  Independent  Contractor .  26 

Injuries,  City’s  Liability  for .  17 


IV 


Name  of  Case  Page 

Injuries,  Liability  for — Proximity  of  Light  Wires  to 

Telephone  Wires .  16 

Injuries,  Personal — Excessive  Damages .  3 

Injuries  to  Consumer  by  Overcharged  Wires .  54 

Injuries  to  Servant — Defective  Electrical  Machine....  38 
Injuries  to  Telephone  Lineman,  Liability  for — Unin¬ 
sulated  Wires .  53 

Injury,  Proximate  Cause  of .  39 

Injury  to  Pedestrian .  25 

Inspect,  Lineman’s  Duty  to — Safe  Place  to  Work....  49 

Inspect  Wires,  Duty  to .  58 

Inspection  Contract — Construction .  48 

Install,  Penalty  for  Failure  to — Complaint .  7 

Installation  of  Transformers — Expenses — Discrimina¬ 
tion  .  60 

Installation,  Test  of  Electrical — Waiver .  10 

Installing  Electric  Light  Fixtures,  Lien  for .  3 

Insulation,  Defective .  56 

Insulator,  Liability  for  Injuries  Caused  by  Abandoned  23 
Interference  of  Equity  Court  with  Operation  of  Elec¬ 
tric  Light  Company .  17 

Interference  with  Private  Plants — Use  of  Light  Plant 

for  Other  Purposes .  58 

Knowledge  of  Danger  to  Children,  Company’s .  15 

Known  Danger  —  Persons  Assisting  Electrical  Em¬ 
ployee  . 

Lamp,  Lowered  Street — Constructive  Notice .  6 

Landlord,  Liability  of — Exposed  Electric  Light  Switch  49 

Ledger  as  Evidence  of  Account .  31 

Liability — Dangerous  Pole  in  Street .  33 

Liability — Small  Wire  Falling  Across  High  Power 

Wire  .  35 

Liability  for  Injuries  Caused  by  Abandoned  Insulator  23 

Liability  for  Injuries,  City’s . 17 

Liability  for  Injuries — Proximity  of  Light  Wires  to 

Telephone  Wires .  16 

Liability  for  Injuries  to  Telephone  Lineman — Unin¬ 
sulated  Wires .  53 

Liability  of  Landlord — Exposed  Electric  Light  Switch  49 
Liability  of  Light  Wire  Owner — Light  Wire  Cut  by 

Sagging  Telephone  Wire .  67 

Liability  of  Municipal  Corporations  Owning  Lighting 

Plants .  61 

Liability  of  Municipalities — Electrical  Supplies .  27 

Liability  to  Buying — Selling  Use  of  Poles — Company’s 

Employees  .  38 

Licensee,  Duty  Toward  Mere....^ .  23 

License,  Necessity  for — Maintenance  of  Electric  Line 

on  Rural  Highway .  6 

Lien  for  Installing  Electric  Light  Fixtures .  3 

Lien  for  Wiring  Buildings,  Mechanics’ .  28 

Light  Companies  in  Streets,  Rights  of  Senior  and 

Junior . .  •  •  4 

Light  Company,  Interference  of  Equity  Court  with 

Operation  of .  17 

Light  Plant,  Use  of,  for  Other  Purposes — Interference 
with  Private  Plants .  58 


V 


Name  of  Case  Page 

Light  Plant,  Rival  Claims  to .  24 

Light  Wire  Cut  by  Sagging  Telephone  Wire — Liabil¬ 
ity  of  Light  Wire  Owner .  67 

Light  Wire  Sagging  Over  Railroad  Track — Duty  of 

Railroad  Company . . . .  .  39 

Light  Wires,  Proximity  to  Telephone  Wires — Liabil¬ 
ity  for  Injuries .  16 

Light  and  Telephone  Wires — Assumed  Risks .  4 

Lighting,  Municipal  Street .  45 

Lighting  Plants,  Liability  of  Municipal  Corporations 

Owning  .  61 

Lighting  Private  Residences  —  Construction  of  Fran¬ 
chise  .  1 

Lighting,  Safeguards  Against .  30 

Line  (Electric)  on  Rural  Highway,  Maintenance  of — 

Necessity  for  License .  6 

Lineman — Safe  Place  to  Work . 26 

Lineman,  Liability  for  Injuries  to  Telephone — Unin¬ 
sulated  Wires .  53 

Lineman’s  Duty  to  Inspect — Safe  Place  to  Work .  49 

Lowered  Street  Lamp — Constructive  Notice .  6 

Machine,  Defective  Electrical — Injuries  to  Servant...  38 
Maintenance  of  Electrical  Line  on  Rural  Highway — 

Necessity  for  License .  6 

Manufacturing  Corporation — Eminent  Domain — Public 

Use  . 63 

Master  and  Servant — Existence  of  Relationship .  62 

Minimum  Rate  Ordinance .  19 

Mechanics’  Lien  for  Wiring  Buildings .  28 

Motors,  Sale  of  Electric — Time  of  Delivery .  36 

Municipal  Competition  with  Private  Plant . 65 

Municipal  Corporation  Owning  Lighting  Plants,  Lia¬ 
bility  of .  61 

Municipal  Street  Lighting .  45 

Municipalities,  Liability  of — Electrical  Supplies .  27 

Municipalities  and  the  Sale  of  Electrical  Supplies....  13 
Municipality,  Power  of,  to  Purchase  Public  Utility..  . .  48 

Nature  of  Franchise .  27 

Necessity  of  License — Maintenance  of  Electric  Line  on 

Rural  Highway .  6 

Necessity,  Public — Surplus  Power — Condemnation....  10 
Negligence,  Burden  of  Proof  of  Contributory — Dam¬ 
ages  to  Property .  32 

Negligence,  Contributory .  45 

Negligence,  Contributory .  55 

Negligence,  Contributory — Broken  Wire .  31 

Negligence,  Contributing — Wire  on  Sidewalk .  20 

Negligence  of  Superintendent: — Evidence .  34 

Non-User,  Forfeiture  of  Franchise  for . > .  9 

Notice,  Constructive — Lowered  Street  Lamp .  6 

Notice  to  Company — Broken  Wire .  66 

Open  Switch  Accident .  46 

Operation  of  Electric  Light  Company,  Interference  of 

Equity  Court  with .  17 

Orders,  Disobedience  of — Effect .  22 

Ordinance,  Minimum  Rate .  19 

Ordinary  Travel — Height  of  Wires .  24 

Overcharged  Wires,  Injuries  to  Consumers  by .  54 


VI 


Name  of  Case  Page 

Ownership  of  Electrical  Company’s  Stock  and  Bonds.  25 

Pedestrian,  Injury  to .  25 

Penalty  for  Failure  to  Install — Complaint .  7 

Personal  Injuries — Excessive  Damages .  3 

Persons  Assisting  Electrical  Employee — Known  Dan¬ 
ger  . . .  1 

Place  of  Business,  Electric  Plant  a .  16 

Place  to  Work,  Safe — Lineman .  26 

Place  to  Work,  Safe — Lineman’s  Duty  to  Inspect .  49 

Place  to  Work,  Safe — Risks  Assumed .  57 

Plant,  Electric,  a  Place  of  Business .  16 

Pole  in  Street,  Dangerous — Liability .  33 

Poles,  Selling  Use  of — Liability  to  Buying — Company’s 

Employees  .  38 

Power  Companies’  Riparian  Rights — Appropriation  of 

Water  Power .  37 

Power,  City  Council’s — Fixing  Rates .  11 

Power,  Generation  of — Public .  51 

Power  of  Municipality  to  Purchase  Public  Utility .  48 

Power,  Surplus — Condemnation — Public  Necessity....  10 
Power  and  Telephone  Wires,  Contact  of — Guard  Wires  40 
Powers  and  Franchises  Distinguished  —  Competition 
Between  Electrical  Companies  —  Individual  Priv¬ 
ileges  .  42 

Price,  Purchase,  Surety  Bond  for — Sale  of  Storage 

Battery  . . . . . .  32 

Private  Plant,  Municipal  Competition  with .  65 

Private  Plants,  Interference  with — Use  of  Light  Plant 

for  Other  Purposes .  58 

Private  Purpose — Right  of  Condemnation .  52 

Private  Use — Public  Use .  14 

Privileges,  Individual — Competition  Between  Electrical 

Companies — Franchises  and  Powers  Distinguished  42 

Procedure,  Condemnation .  20 

Proceedings,  Eminent  Domain .  7 

Proof,  Burden  of — Falling  Globe — Cause  of  Accident.  50 
Proof  of  Contributory  Negligence,  Burden  of — Dam¬ 
ages  to  Property . 32 

Property,  Damages  to — Burden  of  Proof  of  Contribu¬ 
tory  Negligence .  32 

Proximate  Cause .  12 

Proximate  Cause  of  Injury .  39 

Proximate  Cause — Broken  Wire — Contact .  21 

Proximate  Cause  —  Contact  —  Charged  Guy  Wire  in 

Street . 29 

Proximity  of  Light  Wires  to  Telephone  Wires — Lia¬ 
bility  for  Injuries .  16 

Proximity  of  Wires,  Dangerous — Evidence .  17 

Public — Generation  of  Power .  51 

Public  Necessity — Surplus  Power — Condemnation....  10 
Public  Use  —  Manufacturing  Corporation  —  Eminent 

Domain  .  63 

Public  Use — Private  Use .  14 

Public  Utilities  Act,  Effect  of — Rate  Fixing .  41 

Public  Utility,  Power  of  Municipality  to  Purchase....  48 
Purchase  Price,  Surety  Bond  for — Sale  of  Storage 

Battery . 32 

Purpose,  Private — Right  of  Condemnation .  52 


VII 


Name  of  Case  Page 

Railroad  Company,  Duty  of  —  Light  Wire  Sagging 

Over  Railroad  Track .  39 

Railroad  Track,  Light  Wire  Sagging  Over — Duty  of 

Railroad  Company .  39 

Rate  Fixing — Effect  of  Public  Utilities  Act .  41 

Rate  Ordinance,  Minimum .  19 

Rates,  Arbitration  as  to — Confiscatory  Rates .  41 

Rates,  Confiscatory — Arbitration  as  to  Rates .  41 

Rates,  Fixing — City  Council’s  Power .  11 

Ratification — Contracts  .  9 

Relationship,  Existence  of — Master  and  Servant .  62 

Residences,  Lighting  Private — Construction  of  Fran¬ 
chise  .  1 

Res  Ipso  Loquitur  Rule .  63 

Right  of  Condemnation .  47 

Right  of  Condemnation — Private  Purposes .  52 

Right  to  Construct  Dam .  55 

Right  to  Cut  Trees,  Condemnation  of .  8 

Rights  of  Companies — Discontinuance  of  Service....  47 
Rights  of  Senior  and  Junior  Light  Companies  in 

Streets  .  4 

Riparian  Rights,  Power  Companies — Appropriation  of 

Water  Power .  37 

Risk,  Assumed — Duty  to  Guard  Crossing  Wires .  59 

Risks  Assumed — Safe  Place  to  Work .  57 

Risks,  Assumed — Light  and  Telephone  Wires .  4 

Rival  Claims  to  Light  Plant .  24 

Rubber  Gloves — Contact  of  Wires — Hidden  Danger..  2 

Rubber  Gloves,  Duty  to  Use .  18 

Rural  Highway,  Maintenance  of  Electric  Line  on — 

Necessity  of  License .  6 

Safeguards  Against  Lightning .  30 

Safe  Place  to  Work — Lineman .  26 

Safe  Place  to  Work — Lineman’s  Duty  to  Inspect .  49 

Safe  Place  to  Work — Risks  Assumed .  57 

Sale,  Construction  and  Contract — Electric  Outfit .  45 

Sale  of  Electric  Motors — Time  of  Delivery .  36 

Sale  of  Electrical  Supplies,  Municipalities  and  the....  13 

Sale  of  Electricity,  Contract  of — Construction .  43 

Sale  of  Generator — Acceptance .  30 

Sale  of  Storage  Battery — Surety  Bond  for  Purchase 

Price  .  32 

Selling  Use  of  Poles — Liability  to  Buying — Company’s 

Employees  .  38 

Servant,  Duty  to  Instruct  Inexperienced .  64 

Servant,  Injuries  to — Defective  Electrical  Machine...  38 

Servant,  Master  and — Existence  of  Relationship .  62 

Service,  Discontinuance  of — Rights  of  Companies .  47 

Sidewalk,  Wire  on — Contributory  Negligence .  20 

Small  Wire  Falling  Across  High  Power  Wire — Lia¬ 
bility  .  35 

Stock  and  Bonds,  Ownership  of  Electrical  Company’s  25 
Storage  Battery,  Sale  of — Surety  Bond  for  Purchase 

Price  .  32 

Street.  Charged  Wire  in — Contact — Proximate  Cause..  29 

Street,  Dangerous  Pole  in — Liability .  33 

Street,  Guy  Wire  in .  22 

Street  Lamp,  Lowered — Constructive  Notice .  6 


VIII 


Name  of  Case  Page 

Street  Lighting,  Municipal .  45 

Streets,  Rights  of  Senior  and  Junior  Light  Companies 

in  .  4 

Superintendent,  Negligence  of — Evidence .  34 

Supplies,  Contract  for  Electrical — Construction .  36 

Supplies,  Electrical — Liability  of  Municipalities .  27 

Supplies,  Municipalities  and  the  Sale  of  Electrical....  13 
Surety  Bond  for  Purchase  Price — Sale  of  Storage  Bat¬ 
tery  . 32 

Surplus  Power — Condemnation — Public  Necessity....  10 

Switch  Accident,  Open .  46 

Switch,  Exposed  Electric  Light — Liability  of  Land¬ 
lord  .  49 

Telephone  Company’s  Use  of  Electrical  Company’s 

Pole  . . 34 

Telephone  Lineman,  Liability  for  Injuries  to — Unin¬ 
sulated  Wires .  53 

Telephone  Wires,  Contact  of  Power  and  —  Guard 

Wires  .  40 

Telephone  and  Light  Wires — Assumed  Risks .  4 

Term  of  Franchise .  44 

Test  of  Electrical  Installation — Waiver .  10 

Time  of  Delivery — Sale  of  Electric  Motors .  36 

Time  and  Cause  of  Break,  Evidence  of — Broken  Wire  37 
Track,  Light  Wire  Sagging  Over  Railroad — Duty  of 

Railroad  Company .  39 

Transformers,  Installation  of — Expenses — Discrimina¬ 
tion  .  60 

Travel,  Ordinary — Height  of  Wires .  24 

Trees,  Condemnation  of  Right  to  Cut  Trees .  8 

Uninsulated  Wires — Liability  for  Injuries  to  Telephone 

Lineman  .  53 

Use  of  Electrical  Company’s  Pole  by  Telephone  Com¬ 
pany  .  34 

Use  of  Light  Plant  for  Other  Purposes — Interference 

with  Private  Plants .  58 

Use  of  Poles,  Selling — Liability  to  Buying — Company’s 

Employees  .  38 

Use,  Private — Use,  Public .  14 

Use,  Public  —  Manufacturing  Corporation  —  Eminent 

Domain  .  63 

Waiver — Test  of  Electrical  Installation .  10 

Water  Power,  Appropriation  of  —  Power  Companies’ 

Riparian  Rights .  37 

Wire,  Broken — Contact — Proximate  Cause .  21 

Wire,  Broken — Contributory  Negligence .  31 

Wire,  Broken — Evidence  of  Cause  and  Time  of  Break  37 

Wire,  Broken — Notice  to  Company .  66 

Wire,  Guy,  in  Street .  22 

Wire  in  Street,  Charged  Guy — Contact — Proximate 

Cause  .  29 

Wire,  Light,  Cut  by  Sagging  Telephone  Wire — Lia¬ 
bility  of  Light  Wire  Owner .  67 

Wire,  Light,  Sagging  Over  Railroad  Track — Duty  of 

Railroad  Company .  39 

Wire  on  Sidewalk — Contributory  Negligence .  20 

Wire,  Small,  Falling  Across  High  Power  Wire — Lia¬ 
bility  .  35 


IX 


Name  of  Case  Page 

Wires,  Contact  of  Power  and  Telephone — Guard  Wires  40 
Wires,  Contact  of — Destruction  by  Fire — Damages...  21 
Wires,  Contact  of — Hidden  Danger — Rubber  Gloves..  2 

Wires,  Dangerous  Proximity  of — Evidence .  17 

Wires,  Duty  to  Guard  Crossing — Assumed  Risk .  59 

Wires,  Duty  to  Inspect .  58 

Wires,  Guard — Contact  of  Power  and  Telephone  Wires  40 

Wires,  Height  of — Ordinary  Travel .  24 

Wires,  Light  and  Telephone — Assumed  Risks .  4 

Wires  on  Highways — Care  Required .  61 

Wires,  Overcharged,  Injuries  to  Consumer  by . .  ..  54 

Wires,  Proximity  of  Light  to  Telephone — Liability  for 

Injuries  .  16 

Wires,  Uninsulated  —  Liability  for  Injuries  to  Tele¬ 
phone  Lineman  .  53 

Wiring  Buildings,  Mechanics’  Lien  for .  28 

Witness,  Electrical  Engineer  as  Expert .  66 

Work,  Safe  Place  to — Lineman .  26 

Wrongfully  Cutting  Off  Current .  56 


X 


RECENT  LEGAL  DECISIONS 


OF  INTEREST  TO 


ELECTRIC  LIGHT,  POWER,  AND  STREET 
RAILWAY  PLANTS,  AND  TELE¬ 
PHONE  COMPANIES 


Persons  Assisting  Electrical  Employee — Known 


Danger 


HE  agent  of  a  traction  company  was  in  the  habit 


i  of  employing  a  man  to  help  him  to  clean  the 
electrical  machinery  in  the  plant,  such  helper  looking 
to  the  agent  for  his  pay.  Neither  of  them  contem¬ 
plated  that  the  helper  should  become  an  employee  of 
the  traction  company.  The  helper  was  injured  by  com¬ 
ing  in  contact  with  charged  wires.  In  an  action  against 
the  traction  company  the  company  was  held  not  liable. 
Even  if  the  agent  had  had  authority  to  invite  persons 
into  the  sub-station,  the  plaintiff’s  own  testimony 
showed  that  he  knew  of  the  danger  when  the  current 
was  on,  and  therefore  he  assumed  the  risk  of  being  in¬ 


jured. 


Blalack  v.  Texas  Traction  Co.,  Texas  Civil  Appeals, 
149  S.  W.  1086. 


Construction  of  Franchise — Lighting  Private 


Residences 


IN  AN  ACTION  by  an  individual  against  an  electric 
light  company  to  compel  it  to  furnish  lights  for  a 
house,  in  accordance  with  a  franchise  requiring  it  to 
furnish  lights  for  private  and  commercial  lighting  and 
for  private  residences,  at  different  rates,  the  petition 
was  held  demurrable  because  it  did  not  allege  that  the 
house  was  a  private  residence. 

The  company’s  franchise  provided  in  one  clause  that 
it  should  furnish  lights  for  “private  and  commercial 
lighting”  at  a  cost  not  exceeding  75  cents  per  light  per 
month,  and  in  the  next  clause  that  it  should  furnish 


1 


lights  for  use  in  “private  residences”  at  a  cost  not  ex¬ 
ceeding  50  cents  per  light  per  month,  flat,  or  15  cents 
for  1,000  watts  in  case  the  current  was  run  through  a 
meter,  in  which  latter  case  the  company  might  charge 
for  wiring  houses  and  the  cost  of  the  meter,  in  addition 
to  the  charge  for  1,000  watts.  It  was  held  that  the 
former  clause  referred  to  private  and  commercial  light¬ 
ing  in  all  buildings  except  private  residences,  and  the 
latter  clause  to  the  lighting  of  private  residences. 

Marion  Electric  Light  and  Ice  Co.  v.  Rochester, 
149  Ky.,  810,  149  S.  W.,  977. 


Contact  of  Wires — Hidden  Danger — Rubber  Gloves 

IN  AN  ACTION  for  the  death  of  an  employee  of  a 
light  company  against  the  light  company  and  two 
telephone  companies  the  complaint  alleged,  as  the  cause 
of  death,  contact  with  a  ground  wire,  which  was  in  con¬ 
tact  with  a  guy  wire,  forming  a  general  connection 
with  the  high  voltage  wire  on  which  the  deceased  was 
working.  It  proceeded  upon  the  theory  that  the  de¬ 
ceased  was  set  to  work  in  an  unsafe  place,  and  showed 
that  the  only  ground  wire  attached  to  the  pole  on  which 
the  deceased  was  working  did  not  extend  down  the  pole 
to  the  ground.  It  was  held  that  answers  of  the  jury  to 
special  interrogatories  to  the  effect  that  the  deceased 
cut  off  the  ground  wire  below  the  guy  wire  an  hour 
before  the  time  of  his  injury  did  not  amount  to  a  find¬ 
ing  that  the  wire  cut  by  the  deceased  extended  to  the 
ground,  so  as  to  show  that  the  deceased  himself  made 
the  place  unsafe.  Other  answers  of  the  jury  were 
to  the  effect  that  among  the  crew’s  equipment  were 
rubber  gloves  and  that  the  deceased’s  failure  to  wear 
such  gloves  while  attempting  to  repair  the  insulation 
on  the  light  company’s  wires  “contributed  proximately 
to  the  cause  of  his  death.”  It  was  held  that  it  was 
not  shown  that  conditions  rendering  the  wearing  of 
rubber  gloves  necessary  were  present  and  known  to 
the  deceased,  or  could  have  been  known  to  him  by  the 
exercise  of  ordinary  care  at  the  time  he  undertook  to 
tape  the  wire.  The  deceased  by  his  contract  of  em¬ 
ployment  assumed  the  risks  naturally  incident  to  the 
service  for  which  he  was  employed,  and  those  known 
to  him  or  which  he  could  discover  in  the  exercise  of 
ordinary  care.  Those  dangers  which  are  unknown  to 
the  servant  and  not  discoverable  by  him  with  ordinary 

2 


care,  but  which  are,  or  by  ordinary  care  of  the  master 
should  be  known  to  him,  are  not  assumed.  The  de¬ 
ceased  went  up  the  pole  to  place  upon  it  a  cross-arm. 
It  did  not  appear  that  his  signal  purpose  on  the  pole 
was  to  handle  the  high-tension  wires  at  all.  The  order 
to  tape  the  wire  came  to  him  when  he  was  on  the  pole, 
and  the  accident  happened  while  he  was  doing  so. 
From  all  appearances  observable  to  him  there  was  no 
danger  in  doing  so  as  he  did.  The  only  danger  was  the 
secret  contact  of  wires  unknown  to  him  and  known  to 
the  master.  The  light  company  was  held  liable  and  the 
telephone  companies  not  liable. 

Marion  Light  &  Heating  Co.  v.  Vermillion,  Indiana 
Appellate  Court,  99  N.  E.,  55. 


Lien  for  Installing  Electric  Light  Fixtures 

A  LEASE  of  premises  authorized  the  installation  of 
gas  and  electric  fixtures  by  the  lessee.  A  sub¬ 
lease  made  a  contract  for  the  manufacture  and  instal¬ 
lation  of  the  fixtures.  The  contractor  afterwards  filed 
a  mechanic’s  lien  on  the  premises  for  the  price.  The 
fixtures  consisted  of  electric  light  ceiling  lamps  or 
chandeliers,  electric  light  reflectors,  pendants,  brackets, 
and  lanterns,  and  gas  and  electric  light  brackets,  espe¬ 
cially  designed  and  manufactured  with  reference  to 
the  general  decorative  scheme  and  architecture  of  the 
building.  It  was  held  that  they  constituted  an  “im¬ 
provement  of  real  property,”  and  the  designing,  manu¬ 
facturing,  installing,  and  furnishing  thereof  constituted 
the  performance  of  labor  and  furnishing  of  materials 
for  the  improvement  of  real  property,  entitling  the  con¬ 
tractor  to  a  lien  under  the  New  York  Lien  Law. 

Wahle-Phillips  Co.  v.  Fifty-ninth  street — Madison 
Avenue  Co.,  153  N.  Y.  App.  Div.  17 ;  138  N.  Y. 
Supp.,  13. 


Personal  Injuries — Excessive  Damages 

A  BOY  of  10  was  injured  in  May  by  coming  in  con¬ 
tact  with  a  live  electric  wire.  He  was  rendered 
unconscious  for  a  short  time  from  the  shock,  and  was 
burned  in  both  hands  and  his  shoulder  and  leg.  He 
remained  in  the  hospital  three  days,  and  was  dis¬ 
charged  from  treatment  by  his  physician  on  August 
5th.  He  went  to  school  during  the  following  Septem¬ 
ber  and  had  apparently  recovered.  His  physician  testi- 

3 


tied  that  the  scars  in  his  left  palm  would  probably  re¬ 
main  tender,  and  that  the  right  arm  was  smaller  than 
the  left  caused  by  non-use  during  his  convalescence. 
The  only  contention  made  that  the  injury  was  per¬ 
manent  was  that  the  flexibility  of  the  thumb  and  finger 
of  the  left  hand  was  not  as  great  as  it  was  originally. 
It  was  held  that  a  verdict  allowing  the  plaintiff  $5,000 
was  excessive,  and  should  be  reduced  to  $3,000. 

City  of  Austin  v.  Browning,  Texas  Civil  Appeals, 
150  S.  W.,  961. 


Light  and  Telephone  Wires — Assumed  Risks 

A  MAN  of  mature  age  and  fairly  well  educated, 
having  previously  worked  about  electric  plants 
and  being  familiar  with  the  dangers  attending  tele¬ 
phone  and  electric  light  wires,  was  employed  as  a 
“trouble  finder”  by  a  telephone  company.  He  was  sent 
to  repair  a  broken  wire  strung  on  a  cross-arm  above 
electric  light  wires,  knowing  that  the  light  wires  were 
not  insulated,  except  to  protect  them  against  the 
weather,  and  that  if  the  telephone  wire  came  in  contact 
therewith  it  would  be  dangerous.  While  working  on 
the  wire  it  came  in  contact  with  the  electric  light  wire, 
and  the  man  was  slightly  shocked,  but  not  injured. 
Thereafter  he  attempted  to  draw  the  telephone  wire 
taut,  when  it  again  came  in  contact  with  the  electric 
light  wire,  and  he  received  a  shock  which  resulted  in 
his  death.  In  an  action  therefor  against  both  the  tele¬ 
phone  and  light  companies  it  was  held  that  the  danger 
was  not  latent,  but  that  the  deceased  proceeded  with 
knowledge  thereof  and  assumed  the  risk,  and  judg¬ 
ment  for  the  plaintiff  was  reversed  and  a  new  trial 
ordered. 

People’s  Telephone  Co.  v.  Conant,  C.  C.  A.,  198 
Fed,  624. 


Rights  of  Senior  and  Junior  Light  Companies  in 

Streets 

ACTION  was  brought  by  an  electric  company  to 
prevent  another  with  a  junior  franchise  from 
placing  its  wires  in  dangerous  proximity  with  those  of 
the  plaintiff  company.  In  stating  the  facts  of  the  case 
the  court  said  that  it  had  been  demonstrated  by  the  un¬ 
contradicted  evidence  that  in  the  best  of  pole  construc¬ 
tion  no  pole  will  maintain  its  perpendicular  or  other 

4 


position  in  which  it  is  set.  Climatic  conditions  all  have 
their  tendency  to  cause  the  pole  to  vary  from  its  orig¬ 
inal  position,  causing  a  greater  or  less  sag  in  the  wires 
included  in  the  span.  It  has  been  demonstrated  by 
mathematical  calculation  that  in  a  span  100  feet  in 
length  the  deflection  of  a  pole  at  the  top  a  distance  of 
three  inches  towards  the  other  pole  in  the  span  will  in¬ 
crease  the  sag  18  inches ;  and  that  six  inches  of  deflec¬ 
tion  will  increase  the  sag  34  inches,  over  an  original 
sag  of  24  inches.  This  tendency  in  pole  line  construc¬ 
tion  of  poles  to  change  their  position  is  one  of  the  con¬ 
ditions  that  must  be  guarded  against  in  the  maintenance 
of  two  or  more  electric  pole  line  constructions  on  the 
came  street  or  highway.  The  preponderance  of  evi¬ 
dence  in  the  present  case  showed  that  safe  pole  line 
construction  requires  a  clearance  between  wires  of  two 
or  more  different  or  independent  constructions  of  at 
least  24  inches,  and  that  this  clearance  is  observed  in 
all  cases  where  due  regard  is  had  for  the  safety  of  life 
and  property. 

As  between  electrical  companies  exercising  similar 
franchises  upon  the  same  streets  the  court  made  several 
rulings.  First,  it  was  held  that  priority  carries  su¬ 
periority  of  right.  Second,  the  subsequent  licensee  is 
under  duty  so  to  construct  and  maintain  its  wires  and 
lines  as  not  to  interfere  with  the  right  of  the  prior 
occupant  of  the  streets  to  properly  maintain  and  oper¬ 
ate  its  lines  and  to  transact  the  business  it  is  author¬ 
ized  by  its  franchise  to  transact.  Third,  equity  will  en¬ 
join  all  interference  of  junior  companies  with  senior 
companies  which  is  not  strictly  avoidable,  and  this 
without  regard  to  the  extra  cost  of  the  methods  which 
might  be  necessary  for  the  junior  company  to  use  to 
prevent  such  interference.  Fourth,  the  company  hav¬ 
ing  the  prior  right  upon  the  street  is  entitled  to  as  much 
space  therein  as  is  reasonably  necessary  for  the  safe 
and  successful  operation  of  its  line,  including  any  addi¬ 
tional  space  that  it  may  be  reasonably  anticipated  will 
become  necessary  in  the  future  for  the  growth  and  en¬ 
largement  of  its  business.  Fifth,  there  is  no  right, 
without  the  consent  of  the  other  party,  in  one  electric 
light  company  to  attach  in  any  way  its  wires  to  the 
poles  of  another  electric  light  company,  or  to  attach 
the  wires  of  another  electric  light  company  to  its  own 
poles. 

Edison  Electric  Illuminating  Co.  of  Williamsport  v. 
Citizens’  Electric  Co.,  235  Pa.,  492,  84  Atl.,  438. 

5 


Maintenance  of  Electric  Line  on  Rural  Highway — 

Necessity  for  License 

ACTION  was  brought  to  enjoin  two  individuals, 
doing  business  as  the  Wilson  Electric  Light 
Company,  from  the  construction  of  an  electric  line 
from  one  city  to  another  along  the  highway  in  order 
to  furnish  light,  heat,  and  power  to  the  inhabitants  re¬ 
siding  along  the  line.  It  was  contended  that  such  a  use 
could  not  be  made  of  the  highway  without  express 
legislative  authority.  It  was  held  that  the  transmitting 
and  carrying  of  light,  heat,  and  power  along  a  high¬ 
way  for  distribution  among  consumers  is  a  legal  proper 
use  of  the  highway,  and  that  a  person  may  build  and 
maintain  such  a  line  on  a  rural  highway  without  hav¬ 
ing  obtained  a  franchise  or  special  license  from  any 
officer,  provided  it  is  done  in  a  way  that  will  not  seri¬ 
ously  impede  or  endanger  public  travel  or  unnecessarily 
interfere  with  the  reasonable  use  of  the  highway  by 
other  members  of  the  public,  and  there  is  no  invasion 
of  the  rights  of  the  owners  of  abutting  lands.  If  such 
a  line  should  be  built  and  maintained  so  as  substantially 
to  interfere  with  the  legal  and  proper  use  of  the  high¬ 
way  by  others  of  the  public,  or  if  the  appliances  set 
up  and  used  in  the  highway  constituted  a  nuisance,  the 
State,  at  the  instance  of  the  Attorney  General  or 
County  Attorney,  might  maintain  an  action  to  enjoin 
the  continuance  of  the  nuisance  or  the  further  illegal 
use  of  the  highway. 

State  v.  Weber,  88  Kan.  175,  127  Pac.,  536. 


Lowered  Street  Lamp — Constructive  Notice 

ACTION  was  brought  against  an  electric  light  com¬ 
pany  for  a  death  caused  by  the  point  of  de¬ 
ceased’s  umbrella,  which  he  was  carrying  above  his 
head,  coming  in  contact  with  one  of  the  defendant’s 
lamps,  which  had  by  some  means  been  lowered  from 
its  normal  position  some  10  or  12  feet  above  the  street, 
until  it  hung  at  a  point  above  the  street  where  such 
lamps  are  trimmed,  that  is,  about  four  feet  above  the 
street.  The  lamp  was  suspended  in  the  ordinary  way, 
so  that  it  could  be  lowered  for  the  purpose  of  trim¬ 
ming,  and  was  intended  to  be  and  at  frequent  intervals 

6 


was  so  lowered.  The  evidence  showed  that  there  was 
no  defect  in  the  light  or  the  apparatus  by  which  it  was 
raised  or  lowered,  in  so  far  as  the  raising  or  lowering, 
or  security  of  it  when  raised,  were  in  question.  It  was 
held  that  the  mere  fact  that  the  lamp  in  some  way  had 
been  lowered  from  its  normal  position  until  it  hung 
about  four  feet  above  the  street  was  not  evidence  of 
negligence,  or  that  the  lamp  fell  by  reason  of  some  de¬ 
fect  in  the  apparatus  which  held  it  in  place.  It  had 
been  lowered  from  its  normal  position  only  about  an 
hour  and  a  half,  and  the  fact  was  in  no  way  indicated 
at  the  power  house.  It  was  held  that  finding  that  the 
electric  light  company  had  constructive  notice  of  the 
lamp  being  down  was  contrary  to  the  evidence.  Rea¬ 
sonable  care  did  not  require  such  a  frequent  inspection. 


Huscher  v.  New  York  &  Queens  El.  L.  &  P.  Co.,  139 
N.  Y.  Supp.,  537. 


Eminent  Domain  Proceedings 

N  appeal  from  an  award  of  assessors  in  condem- 


nation  proceedings  under  Georgia  Civil  Code, 
1910,  Sec.  5206,  et  seq.,  is  a  de  novo  investigation,  and 
the  defendant  in  such  proceedings  may  file  an  appro¬ 
priate  legal  defense  thereto.  In  such  a  case  the  con¬ 
demnor  had  described  the  entire  tract  of  land  of  the 
condemnee,  out  of  which  it  was  proposed  to  take  the 
condemned  land,  as  containing  125  acres.  A  portion 
of  the  condemnee’s  plea  averred  that  the  tract  con¬ 
tained  175  acres,  instead  of  125  acres,  which  would  be 
affected  by  the  taking  of  the  land  specified  in  the 
notice.  It  was  held  that  the  condemnee  was  entitled 
to  show  this,  and  a  refusal  to  strike  this  portion  of 
the  plea  was  correct. 

Central  Georgia  Power  Co.  v.  Cornwell,  139  Ga., 
76  S.  E.,  387. 


Penalty  for  Failure  to  Install — Complaint 

ACTION  was  brought  to  recover  a  penalty  under 
California  Civil  Code,  §  629,  which  provides  that 
upon  application  of  the  occupant  of  a  building  distant 
not  more  than  100  feet  from  any  direct  wire  of  an 
electric  corporation,  and  “payment  by  the  applicant  of 


7 


all  money  due  by  him,”  the  corporation  must  supply 
electricity  for  the  building,  and,  on  its  refusal  to  do  so 
for  10  days  after  the  application,  must  pay  applicant 
$50  as  liquidated  damages,  and  $5  a  day  as  damages 
for  every  day  the  refusal  continues  thereafter.  The 
complaint  contained  no  allegation  concerning  the  pay¬ 
ment  of  any  money  due  from  the  plaintiff  to  the  de¬ 
fendant,  or  that  no  money  was  due.  It  was  held  that 
the  complaint  was  bad  as  not  meeting  the  requirement 
of  the  law  as  to  the  condition  precedent  of  payment 
of  all  money  due  by  the  applicant. 


Thompson  v.  San  Francisco  Gas  &  Electric  Co.,  20 
Cal.  App.  142,  128  Pac.,  347. 


Condemnation  of  Right  to  Cut  Trees 


HE  power  of  eminent  domain  has  been  expressly 


X  conferred  by  statute  in  North  Carolina  on  those 
electric  companies  which  have  dedicated  their  property 
to  the  public  service.  Revisal  1905,  Secs.  1571-1577, 
authorizes  corporations  maintaining  lines  for  electric 
power  to  acquire  by  condemnation  such  rights,  priv¬ 
ileges,  and  easements  as  may  be  reasonably  necessary 
to  the  enterprise.  Section  2575,  et  seq.,  provides  that 
such  corporations  may  enter  on  such  contiguous  lands 
along  their  route  as  may  be  necessary  to  protect  their 
property,  etc.  A  corporation  had  acquired  a  right  of 
way  100  feet  wide  to  convey  electric  power,  upon 
which  it  maintained  its  line.  It  subsequently  insti¬ 
tuted  further  proceedings  to  condemn  a  further  right 
or  privilege  in  the  defendants’  lands.  This  was  the 
right  to  cut  certain  trees  standing  within  100  feet  of 
the  lines  of  the  right  of  way,  which  it  alleged  were, 
on  account  of  their  height  and  proximity  to  the  power 
line,  a  constant  menace  and  source  of  danger  to  it  and 
its  safe  operation. 

It  was  held  that  the  right  of  eminent  domain  is 
not  necessarily  exhausted  by  a  single  exercise  of  the 
power,  but,  within  the  limits  established  by  the  gen¬ 
eral  law  or  special  charter,  a  subsequent  or  further 
exercise  of  the  power  may  be  permissible.  The  term 
“rights  and  privileges”  in  the  statute  were  held  broad 
enough  to  include  the  right  sought  to  cut  trees.  Un¬ 
der  Section  2584,  providing  that  any  person  whose 
rights  are  affected  may  show  cause  against  granting 


8 


the  petition,  the  reasonable  necessity  for  condemna¬ 
tion  becomes  an  issuable  question  on  allegations  of 
fact  showing  bad  faith  on  the  part  of  the  corporation 
or  an  oppressive  abuse  of  discretion. 

Yadkin  River  Power  Co.  v.  Wissler,  North  Caro¬ 
lina  Supreme  Court,  76  S.  E.,  267. 


Contracts — Ratification 

IN  AN  ACTION  against  a  city  for  the  price  of 
blowers  furnished  for  its  electric  plant,  the  defense 
was,  first,  that  no  purchase  was  made,  and  second,  if  it 
was  made,  there  was  a  breach  of  contract  by  the 
plaintiff. 

The  chairman  of  the  electric  committee,  who  made 
the  contract,  had  no  authority  to  do  so,  but  the  blow¬ 
ers  were  received  by  the  city,  and  installed  in  its 
plant,  and  operated  for  nine  months.  It  was  held 
that  the  city  was  estopped  from  setting  up  want  of 
authority  of  the  chairman  to  execute  the  contract. 

Diamond  Power  Specialty  Co.  v.  City  of  West  Point, 
11  Ga.  App.  533,  75  S.  E.,  903. 


Forfeiture  of  Franchise  for  Non-User 

IT  has  been  held  in  two  actions  decided  at  the  same 
time  by  the  Supreme  Court  of  Missouri  that  twenty 
years  non-user  of  a  franchise  to  use  the  streets  of  a 
municipality  in  any  way  necessary  to  carry  on  the 
business  of  furnishing  electric  light  forfeits  the  fran¬ 
chise,  which  may  be  declared  void  upon  quo  warranto. 
A  franchise  to  use  the  streets  for  the  erection  of  poles 
and  wires  for  the  transmission  of  electricity  carries 
with  it  an  implied  condition  of  the  furnishing  of  such 
services.  An  intention  to  resume  at  some  indefinite 
future  time  the  furnishing  of  electricity  for  light  and 
power  will  not  avoid  the  forfeiture  of  the  franchise. 
And  the  state’s  right  to  forfeit  it  on  quo  warranto 
cannot  be  barred  because  the  holder  of  the  franchise 
is  then  able  and  desirous  of  resuming,  there  being 
no  occasion  for  the  state  to  assert  the  forfeiture  until 
there  is  an  attempt  to  resume. 

State  v.  Light  &  Development  Co.  of  St.  Louis 
(Mo.),  152  S.  W.,  67. 

State  v.  West  End  Light  &  Power  Co.  (Mo.),  152 
S.  W.,  76. 


9 


Test  of  Electrical  Installation — Waiver 

THE  contract  for  the  wiring  and  otherwise  equip¬ 
ping  with  electrical  appliance  a  theatre  belonging 
to  the  defendants  provided  that  a  final  test  should  be 
made  by  the  contractors  at  least  six  days  before  the 
opening  of  the  theatre,  in  the  presence  of  the  archi¬ 
tect,  the  owners,  and  “inspector  having  jurisdiction,” 
and  that  notice  must  be  given  in  writing  by  the  con¬ 
tractors  to  each  of  the  parties.  There  was  evidence 
tending  to  show  that  such  inspection  was  not  made 
before  the  opening  of  the  theatre,  but  that  the  work 
was  somewhat  hurried  in  order  to  be  completed  in 
time  for  the  theatrical  performance,  and  that  the  de¬ 
fendants  received  the  work  without  requiring  any 
such  inspection  or  making  any  protest  on  account  of 
its  omission.  It  was  held  that  the  defendants  thereby 
waived  the  requirement  as  to  the  time  of  the  test. 

Bandy  Bros.  v.  Norton  Frierson’s  Sons,  138  Ga., 
515. 


Condemnation — Public  Necessity — Surplus  Power 

WHEN  a  public  service  corporation  seeks  con¬ 
demnation  for  public  purposes  only,  its  power  to 
exercise  the  right  of  eminent  domain  will  be  sustained. 
If  it  should  thereafter  attempt  to  use  for  private  pur¬ 
poses  the  property  taken,  the  right  and  authority  to  pre¬ 
vent  such  an  abuse  or  wrongful  act  rests  in  the  super¬ 
vising  and  controlling  power  of  the  State.  An  electric 
power  company  had  a  contract  and  franchise  by  which 
it  had  agreed  to  furnish  power  for  public  use  to  the 
town  of  Camas,  Wash.,  and  it  had  agreed  to  furnish 
power  to  an  electric  public  service  railroad  about  to  be 
constructed.  It  sought  to  develop  10,000  horse-power, 
and  contemplated  the  procuring  of  other  contracts  for 
the  transmission  of  such  power  to  various  localities  to 
be  devoted  to  public  uses  only.  It  was  objected  that 
the  amount  sought  to  be  appropriated  was  largely  in 
excess  of  present  or  prospective  public  need  or  demand. 
It  was  held  that  the  proof  of  the  contracts  which  the 
company  had  made  was  sufficient  to  show  public  neces¬ 
sity,  though  the  requirements  of  the  contracts  would 
only  consume  a  small  part  of  the  energy  it  contem¬ 
plated  producing.  Any  public  service  corporation, 
when  installing  an  electric  plant,  must  anticipate  future 

10 


as  well  as  present  needs  of  the  public,  and  it  may  con¬ 
demn  private  property  with  such  needs  in  view.  It  was 
also  held  that  the  company  was  not  barred  from  the 
right  of  condemnation  because  it  also  intended  to  sell 
any  surplus  power  generated  for  private  consumption. 

State  ex.  rel.  Lyle  Light,  Power  &  Water  Co.  v. 
Superior  Court,  70  Wash.  486,  127  Pac.  104. 


Authority  to  Issue  Electric  Light  Bonds 

THE  Constitution  of  Texas  authorizes  the  levy  of 
a  tax  “for  the  erection  of  public  buildings,  streets, 
sewers,  waterworks,  and  other  permanent  improve¬ 
ments.'’  In  a  suit  to  enjoin  a  city  from  issuing  bonds 
for  the  construction  of  an  electric  light  plant  it  was 
urged  that  the  erection  and  operation  of  an  electric 
light  plant  is  an  enterprise  so  different  from  the  erec¬ 
tion  of  public  buildings,  streets,  sewers  and  water¬ 
works  that  under  the  rule  of  ejusdem  generis  it  could 
not  be  regarded  as  included  in  the  clause  “other  per¬ 
manent  improvements.”  It  was  held  that,  waterworks 
and  electric  light  plants  being  of  the  same  general 
character  of  public  utilities  or  improvements,  electric 
light  plants  are  ejusdem  generis  with  waterworks. 

Simpson  v.  City  of  Nacogdoches,  Texas  Civil  Ap¬ 
peals,  152  S.  W.,  858. 


Fixing  Rates — City  Council’s  Power 

TEMPORARY  injunction  was  sought  to  restrain 
the  city  council  of  Charleston  from  enforcing  the 
rates  to  be  charged  by  a  light,  heat  and  power  com¬ 
pany,  pending  the  hearing  of  the  action  for  injunction 
by  the  Supreme  Court.  The  city’s  right  to  fix  such 
charges  was  expressly  reserved  in  the  franchise  un¬ 
der  which  the  company  operates,  but  it  took  the  po¬ 
sition  that  this  agreement  was  made  subject  to  the 
state’s  sovereign  power  to  assert  its  control  over  the 
rate  to  be  charged  by  public  service  corporations.  It 
contended  that  the  state  has  exercised  that  power  by 
the  statute  of  1912,  creating  a  public  service  commis¬ 
sion  authorized  to  fix  charges  for  gas  and  electricity, 

11 


and  has  thus  destroyed  the  right  to  fix  rates,  con¬ 
ferred  on  the  council  by  the  franchise  contract.  The 
court  said  that  it  might  be  that  the  state  could,  by 
statute,  supplant  any  rate  fixed  by  the  council  under 
the  contract. 

Taking  the  view  most  favorable  to  the  company, 
and  assuming  that  the  state  has  reserved  that  power, 
it  was  held  that,  until  the  commission  has  exercised 
its  power  to  fix  a  different  rate,  that  provided  by  the 
contract  stands.  Giving  the  broadest  meaning  and  full 
force  to  the  statute,  it  empowers  the  commission  to 
make  a  maximum  rate  lower  or  higher  than  that  which 
it  may  find  fixed  by  the  public  service  corporation  it¬ 
self,  or  by  some  agency  which  has  fixed  the  rate  under 
the  authority  of  the  corporation.  Until  the  commis¬ 
sion  acts,  the  power  of  the  corporation  to  provide  its 
rates  is  unhampered  by  the  statute. 

The  petition  for  temporary  injunction  was  therefore 
denied. 

Charleston  Consol.  Ry.  &  Lighting  Co.  v.  City  of 
Charleston,  92  S.  C.,  127,  75  S.  E.,  390. 


Proximate  Cause 

AN  excessive  current  of  electricity  on  telephone 
wires  leading  into  a  manufacturing  company’s 
plant  caused  fire  and  sparks  to  fly  from  the  telephone 
instrument  in  the  boiler  room,  threatening  to  destroy 
the  plant.  The  employee  in  charge  of  the  machinery, 
to  protect  the  plant,  cut  the  wires,  and  in  so  doing  he 
received  a  shock  which  caused  his  death.  In  an  action 
against  the  telephone  company,  it  was  alleged  that  the 
telephone  wires  were  negligently  strung  about  6  feet 
beneath  the  wires  of  a  transmission  company,  and 
neither  were  protected  by  insulation,  and  that  the  tele¬ 
phone  instrument  was  not  protected  by  ground  wires, 
fuse  plugs,  or  other  safety  devices.  It  was  stated  for 
the  defendant  that  an  adjacent  property  owner  climbed 
a  tree  upon  his  property  and  cut  a  limb  which  fell  upon 
the  transmission  line,  breaking  it  and  causing  it  to 
come  into  contact  with  the  telephone  line.  It  was  con¬ 
tended  that  this  act  was  an  intervening  efficient  cause 
of  the  injury  which  resulted  proximately  therefrom. 
The  telephone  company’s  negligence  was  admitted.  If 

12 


the  act  of  cutting  the  limb  from  the  tree  was  negligent 
merely,  and  not  malicious,  and  combined  with  the  com¬ 
pany’s  negligence  to  cause  the  injury,  both  parties  were 
liable.  If  it  was  legal,  the  negligence  of  the  defendant 
was  the  proximate  cause  of  the  injury.  Judgment  for 
the  defendant  was  reversed,  and  a  new  trial  ordered. 

Crandall  v.  Consol.  Tel.,  Tel.  &  Electric  Co.,  Arizona 
Supreme  Court,  127  Pac.,  994. 


Municipalities  and  the  Sale  of  Electrical  Supplies 

WOOD,  as  a  citizen  and  taxpayer  of  the  city  of 
Dalton,  Ga.,  brought  an  action  against  the  city 
and  its  water,  light,  and  gas  commission,  consisting  of 
named  persons,  to  enjoin  the  defendants  from  further 
engaging  in  the  business  of  selling  electrical  supplies  to 
the  inhabitants  of  the  city,  installing  electrical  appli¬ 
ances  for  them,  and  generally  transacting  the  busi¬ 
ness  of  a  private  electrician,  on  the  ground  that  such 
acts  were  ultra  vires.  There  was  no  positive  and 
direct  evidence  submitted  in  behalf  of  the  plaintiff 
on  the  hearing  for  an  interlocutory  injunction  that 
the  city,  or  such  commission,  was  engaged,  at  the  time 
the  petition  was  presented  to  the  judge,  or  for  a  con¬ 
siderable  time  prior  thereto,  in  doing  the  acts  sought 
to  be  enjoined.  The  only  evidence  for  the  plaintiff 
on  such  hearing  consisted  in  the  opinions,  conclusions, 
and  inferences  of  witnesses,  from  given  facts  which 
had  not  been  authorized.  The  evidence  for  the  de¬ 
fendants  was  positive  that  neither  the  city  nor  any  of 
its  officials  was  engaged  in  the  business  complained  of 
at  the  time  of  the  presentation  of  the  petition  to  the 
judge,  nor  for  several  weeks  prior  thereto,  and  that 
such  business  was  discontinued  because  of  the  com¬ 
plaint  of  the  defendant.  At  the  time  the  petition  was 
brought,  the  city  electrician,  who  was  not  a  party  de¬ 
fendant,  was  engaged  in  ordering  electrical  supplies 
from  a  dealer  in  such  articles,  and  kept  them  on  hand 
as  city  electrician,  to  be  furnished  to  the  citizens  of 
the  town  who  might  desire  to  purchase  them.  When 

13 


such  articles  were  purchased  by  the  citizens  the  price 
was  paid  to  the  city  electrician,  who  deposited  the  pro¬ 
ceeds  of  such  sales  in  the  bank  to  his  credit  as  city 
electrician,  on  which  account,  as  city  electrician,  he 
drew  checks  in  favor  of  the  dealer  supplying  the  ar¬ 
ticles.  There  was  an  understanding  between  the  city 
electrician  and  the  person  supplying  such  articles  that 
the  former  was  not  to  pay  for  the  same,  but  was  merely 
to  forward  to  the  dealer  the  proceeds  of  sales,  and  such 
articles  as  were  not  purchased  by  the  citizens  to  be  re¬ 
turned  by  the  city  electrician  to  the  seller.  There  was 
a  further  understanding  by  the  city,  or  the  commis¬ 
sion,  and  the  seller  of  such  articles,  that  the  city  in 
no  event  was  to  be  liable  for  any  of  the  electrical  sup¬ 
plies  forwarded  to  the  city  electrician  and  purchased 
from  him  by  the  citizens.  It  was  shown  to  be  the  duty 
of  the  city  electrician  to  supervise  all  electrical  work 
done  in  the  city,  including  inside  wiring  for  private 
parties,  as  well  as  that  outside  for  streets,  etc.,  and  that 
for  such  services  and  the  furnishing  of  electrical  ma¬ 
terial  to  the  citizens  in  the  manner  above  stated  the 
city  electrician  received  no  more  salary  than  was  paid 
him  prior  to  engaging  in  such  work.  The  Superior 
Court  granted  an  interlocutory  injunction,  but,  on  ap¬ 
peal,  the  Supreme  Court  held  that  in  view  of  the 
evidence  above  detailed  the  judge  erred  in  doing  so, 
and  reversed  the  judgment. 

City  of  Dalton  v.  Wood,  139  Ga.,  102,  76  S.  E.,  863. 


Public  Use — Private  Use 

IN  condemnation  proceedings  in  which  it  was  con¬ 
tended  that  the  proposed  taking  was  not  for  a  pub¬ 
lic  use,  the  evidence  showed  that  the  only  present  mar¬ 
ket  for  electric  current  and  the  only  present  purpose  of 
the  Sultan  Electric  Company  was  to  furnish  electric 
light  to  the  town  and  inhabitants  of  Sultan.  It  was 
held  that  the  use  was  a  public  one,  authorizing  the  ex¬ 
ercise  of  the  power  of  eminent  domain.  While  the 
articles  of  incorporation  of  the  company  empowered 
it  to  manufacture  and  furnish  electricity  for  all  pur¬ 
poses,  public  and  private,  these  uses  are  separable.  In 
such  a  case,  it  was  held,  condemnation  may  be  had  for 
the  public  use  only.  It  is  not  the  objects  for  which  the 

14 


corporation  is  formed  that  prevent  a  diversion  of  the 
property  condemned  to  a  private  use.  The  preventive 
rests  in  the  power  of  the  state  to  compel  it  to  exercise 
its  granted  privileges.  The  company  sought  to  utilize 
the  fall  of  a  creek  to  the  extent  of  80  horse-power, 
and  there  was  a  present  need  for  only  about  30  horse¬ 
power  for  public  use,  but  the  court  thought,  in  view 
of  the  probable  growth  of  the  town  and  the  continually 
increasing  domestic  uses  to  which  electric  current  may 
be  put,  the  margin  was  not  excessive.  The  evidence 
failed  to  show  that  there  was  any  intention  to  use  that 
power,  then  or  in  the  future,  for  other  than  the  public 
use,  except  possibly  in  such  small  quantities  as  to  be 
insignificant  and  incidental  to  the  main  public  purpose. 

State  v.  Superior  Court,  Washington  Supreme 
Court,  127  Pac.,  591. 


Company’s  Knowledge  of  Danger  to  Children 

A  BOY  of  10  years  of  age,  while  playing  near  a 
church,  climbed  over  the  brick  wall  surrounding 
the  churchyard  to  get  a  ball  and  accidentally  caught 
hold  of  some  electric  wires  placed  there  by  a  light  com¬ 
pany,  burning  his  hand  and  arm  and  crippling  him  for 
life.  The  boy  had  contrived  to  climb  over  the  wall, 
which  was  7  feet  8  inches  high,  by  first  climbing  upon 
some  rock  piled  against  it,  and  thence  upon  a  board 
fence  close  to  the  wall,  then  over  the  wall.  The  light 
company  had  no  knowledge  that  the  rock  was  piled 
against  the  wall,  or  that  a  boy  could  climb  over  the 
wall,  or  that  boys  were  in  the  habit  of  entering  the 
churchyard  from  the  adjacent  lot.  It  was  held  that 
the  company,  having  no  reason  to  anticipate  that  chil¬ 
dren  would  go  into  the  churchyard  and  be  injured, 
was  not  liable.  The  “turntable  doctrine”  which  was 
invoked  by  the  plaintiff’s  counsel,  was  established  upon 
the  idea  that  something  dangerous  to  children  had 
been  constructed  at  a  place  where  children  were  in 
the  habit  of  passing  or  congregating,  or  at  a  place 
easy  of  access  and  inviting  to  children,  and  that  these 
facts  were  known  to  the  owner  of  the  dangerous  struc¬ 
ture. 

Meyer  v.  Union  Light,  Heat  &  Power  Co.,  151  Ky., 
332,  151  S.  W.,  941. 


15 


Electric  Plant  a  “Place  of  Business” 
PLANT  for  the  manufacture  and  distribution  of 


electrical  power,  at  which  is  maintained  a  large 
force  of  laborers,  under  the  control  of  a  superintendent 
or  foreman,  is  a  “place  of  business,”  within  the  mean¬ 
ing  of  Georgia  Civil  Code  1910,  §  2259,  relating  to 
mode  of  service  of  suits  upon  domestic  corporations. 

Central  Georgia  Power  Co.  v.  Parnell,  11  Ga.  App. 
779,  76  S.  E.,  157. 


Proximity  of  Wires  to  Telephone  Wires — Liability 

for  Injuries 

HE  Supreme  Court  of  Idaho  holds  that  an  elec- 


I  trie  light  and  power  company  which  maintains  its 
poles  within  a  foot  of  the  pole  of  a  telephone  company, 
and  carries  and  maintains  live  wires  charged  with  elec¬ 
trical  current,  is  chargeable  with  notice  that  laborers 
and  linemen,  working  on  the  telephone  company’s  poles 
and  wires,  may  and  will  come  in  close  contact  with  the 
electric  light  wires,  and  is  chargeable  with  the  duty  of 
protecting  such  persons  against  receiving  injury  from 
the  current  carried  on  such  wires.  This  duty  is  com¬ 
mensurate  with  the  danger  apparent.  A  telephone 
“trouble  man,”  while  seated  on  a  messenger  wire,  was 
suddenly  and  without  apparent  cause  precipitated  onto 
a  live  wire  maintained  by  an  electric  light  company  im¬ 
mediately  under  the  telephone  wires,  and  was  immedi¬ 
ately  electrocuted.  No  cause  was  shown  for  the  fall, 
and  he  was  afterwards  found  to  have  had  an  electric 
burn  on  the  foot  which  was  nearest  to  the  electric 
light  wires.  It  was  held,  in  an  action  against  the  elec¬ 
tric  light  company  and  the  telephone  company  (the 
plaintiff  electing  to  dismiss  the  action  as  against  the 
telephone  company),  that  the  jury  was  justified  in  re¬ 
turning  a  verdict  that  the  death  was  primarily  caused 
by  an  electric  shock,  and  the  court  and  jury  might  pre¬ 
sume,  in  the  absence  of  proof  to  the  contrary,  that  the 
lineman  exercised  reasonable  care  and  precaution  in  an 
effort  to  preserve  his  life,  and  that  he  did  not  expose 
himself  to  injuries  and  risks  that  he  might  reasonably 
have  anticipated  would  inflict  mortal  injuries. 


Staab  v.  Rocky  Mountain  Bell  Telephone  Co.,  23 
Riaho  314,  129  Pac.,  1078. 


16 


Interference  of  Equity  Court  With  Operation  of 
Electric  Light  Company 

AN  electric  power  company  which  has  entered  into 
contracts  with  municipalities  and  electric  roads 
to  furnish  light  and  power  is  a  quasi-public  corpora¬ 
tion.  A  court  of  equity  may,  in  its  discretion,  refuse 
an  injunction  to  restrain  its  breach  of  a  contract  with 
a  private  corporation,  where  the  probable  effect  would 
be  to  disable  it  from  performing  its  other  contracts,  or 
even  to  create  insolvency,  especially  when  the  contract 
sought  to  be  enforced  itself  provides  for  the  payment 
of  liquidated  damages  for  its  breach. 

York  Haven  Water  &  Power  Co.  v.  York  Haven 
Paper  Co.,  C.  C.  A.,  201  Fed.,  270. 


Dangerous  Proximity  of  Wires— Evidence 

IN  determining  whether  an  electric  company  was 
negligent  in  maintaining  a  high-voltage  wire  near 
a  telephone  wire,  the  Utah  Supreme  Court  holds  that 
the  jury  might  consider  the  nature  of  the  current  car¬ 
ried,  the  proximity  of  the  wires,  the  lack  of  necessity 
for  dangerous  proximity,  the  ease  with  which  danger 
could  be  avoided,  and  the  length  of  time  danger  had 
continued. 

Swan  v.  Salt  Lake  &  O.  Ry.  Co.,  Utah  Supreme 
Court,  127  Pac.,  267. 


City’s  Liability  for  Injuries 

A  CITY  operating  an  electric  light  plant  to  light  its 
streets  and  also  to  furnish  private  light  to  the 
citizens,  for  which  it  charges  and  receives  compensa¬ 
tion  and  makes  a  profit,  is,  it  is  held,  liable  for  injuries 
to  a  lineman  in  its  service.  A  lineman  sued  a  city  for 
injuries  received  by  grasping  a  heavily  charged  arc 
wire,  part  of  its  system.  The  only  means  employed  by 
the  city  to  discover  contacts  between  wires  supposed  to 
be  dead  on  which  its  linemen  were  working,  and  wires 
charged  with  electricity,  was  an  indicator  or  switch¬ 
board  in  the  power  house  which  its  engineer  was  re¬ 
quired  to  watch.  It  was  held  liable  to  a  lineman  for 

17 


the  engineer’s  failure  to  watch  the  indicator;  the  duty 
of  inspection  being  a  non-delegable  one,  and  the  engi¬ 
neer  not  being  a  fellow-servant  of  the  lineman. 

City  of  Greenville  v.  Branch,  Texas  Civil  Appeals, 
152  S.  W.,  478. 


Duty  to  Use  Rubber  Gloves 

A  YOUTH,  17  years  of  age,  in  the  employment  of  a 
telephone  company,  was  killed  by  taking  hold  of 
uninsulated  telephone  wires  which  had  fallen  across  a 
heavily  charged  electric  cable.  In  an  action  against  the 
light  and  power  company  for  his  death  it  was  held  that 
it  was  the  deceased's  duty  to  exercise  reasonable  care 
for  his  safety.  The  jury  were  properly  instructed  that 
if  in  attempting  to  remove  the  telephone  wire  he 
omitted  to  take  such  precautions  as  a  reasonably  pru¬ 
dent  boy  of  his  age  and  experience  should  have  taken, 
and  in  the  exercise  of  ordinary  care  he  could  have 
known  of  his  liability  to  injury  from  the  cable,  and 
that  the  wearing  of  rubber  gloves  and  boots  would 
have  lessened  his  peril,  and  if  the  jury  believed  that 
the  wearing  of  such  articles  would  have  been  a  rea¬ 
sonable  precaution  for  him  to  take  for  his  own  safety, 
and  that,  knowing  of  the  peril  of  working  without 
them,  he  took  hold  of  the  wire  without  such  precaution, 
the  jury  should  find  for  the  defendant.  Judgment  for 
the  defendant  was  affirmed. 

Jefifrey  v.  Union  Electric  Light  &  Power  Co.  (Mo.), 
153  S.  W.,  498. 


Circumstantial  Evidence 

A  FIREMAN  in  a  power  plant  whose  duty  it  was 
to  ascend  a  ladder  to  inspect  the  water  in  a 
tower  tank  was  found  unconscious  and  dying  near  the 
foot  of  the  ladder.  In  ascending  the  ladder  he  had  to 
pass  through  a  space  of  about  30  inches  between  the 
ladder  and  defectively  insulated  wires.  There  were 
no  eye-witnesses  of  the  accident,  and  no  direct  and 
positive  evidence  connecting  the  death  with  the  de¬ 
fective  insulation  of  the  company’s  wires.  In  an  action 

18 


for  the  death  several  witnesses  who  saw  the  body,  in¬ 
cluding  two  physicians,  testified  that  the  muscles  of  the 
hands  were  contracted  and  that  the  palms  were  black 
inside.  The  physicians  testified  that  a  shock  might 
produce  this  condition.  It  was  held  that  the  evidence, 
though  circumstantial  only,  was  sufficient  to  show 
causal  connection  between  the  company’s  negligence 
and  the  deceased’s  death,  and  judgment  for  the  plain¬ 
tiff  was  affirmed. 

Houston  Lighting  &  Power  Co.  v.  Barnes,  Texas 
Civil  Appeals,  152  S.  W.,  722. 


Minimum  Rate  Ordinance 

A  CITY  ordinance  prohibited  electric  light  com¬ 
panies  from  charging  a  minimum  rate  of  more 
than  50  cents  a  month.  An  electric  light  company 
sought  to  enjoin  the  enforcement  of  the  ordinance.  It 
alleged  that  the  cost  to  the  company  of  maintaining  gen¬ 
erating  capacity  for,  and  service  connections  with,  each 
consumer  exceeded  the  sum  of  50  cents  per  month,  and 
that  a  reasonable  charge  therefor  was  $1  per  month ; 
that  the  minimum  rate  prescribed  by  the  city,  if  en¬ 
forced,  would  reduce  the  revenue  of  the  company  by 
“sums  aggregating  many  thousands  of  dollars  per 
month,  and  to  an  amount  less  than  the  actual  cost  of 
furnishing  the  service,”  and  would  deprive  the  com¬ 
pany  of  the  right  to  receive  from  each  consumer  the 
cost  of  supplying  it  to  him.  It  was  held  that  no  facts 
were  stated  showing  that  the  rate  complained  of  was 
confiscatory,  or  that,  if  enforced,  it  would  deprive  the 
company  of  its  property  without  just  compensation. 
The  matters  averred  might  be  important,  if  addressed 
to  a  rate-making  tribunal ;  but  the  court  had  no  au¬ 
thority  to  fix  rates,  nor  should  it  attempt  to  assume 
such  a  power  and  set  aside  rates  fixed  by  a  legislative 
body,  because  it  might,  upon  investigation,  come  to  a 
different  conclusion  as  to  the  reasonableness  thereof. 
In  a  case  of  this  character,  the  court  can  review  the 
action  of  the  rate-making  body  only  so  far  as  to  de¬ 
termine  whether  or  not,  under  the  rate  prescribed  and 
the  other  rates  which  the  company  may  lawfully 
charge,  it  will  be  unable  to  realize  a  fair  and  just  re- 

19 


turn  on  the  value  of  its  property  devoted  to  the  par¬ 
ticular  public  use,  and  will  amount  to  a  taking  of 
its  property  without  just  compensation. 

Portland  Ry.,  Light  &  Power  Co.  v.  City  of  Port¬ 
land,  200  Fed.,  890. 


Wire  on  Sidewalk — Contributory  Negligence 

IF  a  telephone  wire  is  found  broken  and  lying  on  the 
sidewalk,  dangerously  charged  with  electricity,  a 
person  who  is  injured  by  coming  in  contact  with  it, 
without  fault  on  his  part,  is  not  bound,  in  order  to  fix 
liability  for  negligence  on  the  part  of  the  company  hav¬ 
ing  ownership,  charge  and  control  of  such  wire,  to 
prove  specifically  how  or  in  what  manner  the  wire  was 
broken  and  became  charged  with  electricity,  nor  how 
long  the  wire  had  been  broken  and  lying  upon  the  side¬ 
walk  in  such  dangerous  condition.  The  presence  of  the 
broken  wire  on  the  sidewalk  dangerously  charged  with 
electricity  would  be  sufficient  to  raise  an  inference  of 
negligence  against  the  telephone  company.  A  person 
walking  on  the  public  highway  is  not  necessarily  guilty 
of  contributory  negligence  if  he  sees  a  broken  electric 
wire  on  the  sidewalk,  with  nothing  to  indicate  that  it 
is  a  live  wire,  and  voluntarily  picks  it  up  and  throws  it 
off  the  sidewalk  out  of  his  way.  If  the  wire  is  charged 
with  electricity,  and  he  is  injured  by  contact  therewith, 
he  may  recover  damages  according  to  the  facts,  either 
against  the  city  or  the  electric  company  owning  and 
controlling  the  wire,  or  against  both,  if  the  facts  show 
that  they  are  joint  tort-feasors. 

Southern  Bell  Telephone  &  Telegraph  v.  Davis,  12 
Ga.  App.  28,  76  S.  E.,  786. 


Condemnation  Procedure 

WHEN  power  is  given  to  a  municipality  to  con¬ 
demn  land  for  municipal  purposes,  the  pro¬ 
cedure  necessary  to  give  effect  to  the  right  to  condemn 
must  also  be  prescribed,  otherwise  the  power  given  will 
be  insufficient.  So,  where  private  laws  authorized  the 
commissioners  of  a  city  to  acquire  land  by  condemna¬ 
tion  for  the  construction  of  an  electric  light  plant,  but 

20 


failed  to  provide  any  procedure  therefor,  the  city  ac¬ 
quired  no  power  to  condemn  the  land  thereunder.  But 
the  city  was  authorized  to  maintain  such  proceedings 
under  a  public  law  granting  to  all  municipal  corpora¬ 
tions  the  right  to  build  and  operate  a  system  of  electric 
light  plants,  and  not  only  conferring  in  express  terms 
the  right  to  condemn  property,  but  also  prescribing  the 
necessary  procedure. 

Eppley  v.  Bryson  City,  157  N.  C.  487,  73  S.  E,  197 


Destruction  by  Fire — Contact  of  Wires — Damages 

IN  AN  ACTION  against  an  electric  light  company 
and  a  telephone  company  for  damages  for  the  par¬ 
tial  destruction  of  the  plaintiff’s  residence  and  house¬ 
hold  goods  by  fire,  alleged  to  have  been  caused  by  the 
contact  of  insufficiently  protected  light  and  telephone 
wires,  it  was  held  that  the  measure  of  damages  for  in¬ 
jury  to  a  house  which  might  readily  be  repaired  was 
the  cost  of  repairing,  together  with  the  value  of  its  use 
while  that  was  being  done. 

Cooper  v.  Kankakee  Electric  Light  Co.,  164  Ill.  App., 
581. 


Broken  Wire — Contact — Proximate  Cause 

ACTION  was  brought  for  injuries  sustained  by  the 
plaintiff  through  coming  in  contact  with  an  elec¬ 
tric  current  escaping  from  the  wires  of  a  power  com¬ 
pany,  due  to  a  break  in  the  wire  caused  by  a  telegraph 
company.  The  suit  was  against  both  companies.  The 
telegraph  company’s  wires  were  below  the  high-tension 
wire  of  the  power  company,  and  the  employees  of  the 
former  company  had  brought  a  rope  in  contact  with 
the  wire,  causing  it  to  burn  out  and  break,  one  of  the 
ends  falling  on  a  wire  fence.  It  was  held  that  they 
were  guilty  of  negligence,  and  that  their  act  in  leav¬ 
ing  it  in  that  condition  without  warning  their  employer 
or  the  power  company  was  gross  negligence.  The 
power  company  was  held  not  liable,  and  judgment 
was  given  against  the  telegraph  company.  It  was  held 
that  that  company  could  not  escape  liability  on  the 
ground  that  the  negligence  of  its  servants  in  making 

21 


the  short  circuit  was  not  the  proximate  cause  of  the 
injury,  because  the  power  company  had  turned  on  the 
current  after  the  automatic  circuit  breaker  had  cut  it 
off  upon  the  breaking  of  the  wires;  it  appeared  that 
this  was  the  customary  method  of  testing  a  line  for 
breaks  before  making  a  search. 

Metz  v.  Washington  Water  Power  Co.,  Washington 
Supreme  Court,  130  Pac.,  343. 


Guy  Wire  in  Street 

A  TELEPHONE  company  is  liable  for  personal  in¬ 
juries  to  a  person  who,  in  the  dark,  falls  over  a 
guy  wire  in  a  street  which  has  not  been  taken  over  by 
the  city,  but  which  has  been  used  by  owners  of  houses 
facing  thereon  for  years. 

Raines  v.  East  Tennessee  Telephone  Co.,  150  Ky. 
670,  150  S.  W.,  830. 


Disobedience  of  Orders — Effect 

TWO  employees  of  a  light  company  who  were  em¬ 
ployed  in  wiring  and  installing  electric  light  fix¬ 
tures  in  dwelling  houses,  were  directed  to  attach  some 
wires  to  certain  low  tension  electric  light  wires  lead¬ 
ing  into  a  residence.  Instead  of  doing  so  they  at¬ 
tached  them  to  a  high  tension  wire  carrying  2,200 
volts.  One  of  them,  who  afterwards  picked  up  the 
two  wires,  was  killed  and  suit  was  brought  against 
the  light  company  for  his  death.  It  was  held  that  the 
disobedience  by  the  deceased  of  his  orders  having 
brought  about  his  death,  and  the  employer  not  hav¬ 
ing  learned  of  the  danger  to  which  his  negligence  had 
placed  him  in  time  to  avoid  injury  to  him,  the  em¬ 
ployer  was  not  liable.  In  handling  so  dangerous  an  in¬ 
strumentality  as  currents  of  electricity  of  2,200  volts, 
the  utmost  care  must  be  used  by  those  having  charge 
of  it,  and  a  corresponding  degree  of  care  must  be 
used  by  the  servants  for  their  own  safety  in  handling 
it.  A  disobedience  of  orders  not  only  endangers  them¬ 
selves,  but  endangers  the  lives  of  others. 

West  Kentucky  Coal  Co.  v.  Kuykendal’s  Adm’r,  151 
Ky.,  384,  151  S.  W.,  928. 


22 


Liability  for  Injuries  Caused  by  Abandoned 

Insulator 

A  TELEPHONE  company,  on  abandoning  its 
service  to  a  customer,  left  an  insulator  affixed  to 
the  side  of  the  building.  A  boy  playing  near  was  in¬ 
jured  by  the  insulator  falling  upon  his  head,  the  screw 
affixed  penetrating  his  skull.  It  was  held  that  the 
telephone  company  was  negligent  in  failing  either  to 
remove  or  inspect  the  insulator  and  that  it  was  liable 
for  the  injuries. 

Reid  v.  New  York  &  New  Jersey  Telephone  Co., 
151  N.  Y.  App.  Div.,  96,  135  N.  Y.  Supp,  846. 


Duty  Toward  Mere  Licensee 

AN  EMPLOYEE  of  a  telephone  company,  in 
order  to  repair  one  of  its  wires  which  crossed 
the  wire  of  an  electric  light  company,  went  upon  a  pole 
belonging  to  the  light  company,  and  suspended  a  plat¬ 
form  above  its  wires.  While  on  the  platform  he  re¬ 
ceived  a  shock  due  either  to  the  platform  coming  in 
contact  with  a  light  wire  or  his  feet  or  legs  coming 
in  contact  with  it.  In  an  action  against  the  light  com¬ 
pany  it  was  held  that,  in  the  absence  of  any  agreement 
or  invitation,  he  was,  at  most,  a  mere  licensee,  and  the 
light  company  did  not  owe  him  the  duty  of  ordinary 
care.  Judgment  for  the  plaintiff  was  reversed. 

Dennison  Light  &  Power  Co.  v.  Patton,  105  Tex., 
621,  154  S.  W.,  540. 


Fuse  Box  Accident — Evidence 

AN  EMPLOYEE  of  a  light  company  was  injured 
while  attempting  to  place  fuses  in  the  junction 
pole  fuse  box  as  directed,  for  which  he  sued  his  em¬ 
ployer.  Only  two  customers  were  using  power  beyond 
that  point,  and  the  utmost  capacity  of  their  motors  was 
28^2  amperes.  The  plaintiff  testified  that  less  than  60 
amperes  was  harmless.  It  was  held  that  the  company 
could  not  be  charged  with  knowledge  that  their  cus¬ 
tomers  would  use  more  current  than  the  capacity  of 
their  motors,  or  that  there  was,  or  was  likely  to  be, 

23 


trouble  on  the  line,  in  the  absence  of  any  evidence  to 
that  effect.  The  mere  fact  of  the  accident  and  result¬ 
ing  injury  was  insufficient  to  raise  an  inference  of  ac¬ 
tionable  negligence. 

Gleason  v.  Missouri  River  Power  Co.,  45  Mont., 
395,  128  Pac.,  586. 


Height  of  Wires — Ordinary  Travel 

rHE  high-tension  transmission  line  of  a  power 
company  in  the  Yakima  Valley,  Washington,  ran 
along  the  edge  of  the  public  roads,  about  40  feet  above 
the  ground.  The  voltage  was  very  high  and  insulation 
would  have  been  impracticable,  if  not  impossible.  A 
hay  derrick,  such  as  is  used  in  stacking  hay  in  that 
locality,  45  feet  high,  was  being  hauled  along  the 
road.  A  boy  was  riding  in  the  loop  of  the  cable,  which 
hung  so  low  that  it  came  within  a  short  distance  of  the 
ground.  The  ground  was  uneven  and  the  pole  of  the 
derrick  swung  round  so  that  the  wire  cable  came  in 
contact  with  the  power  line,  at  a  time  when  the  boy 
had  his  foot  on  the  ground.  A  circuit  being  thus 
formed,  the  boy  was  severely  shocked  and  burned  and 
he  sued  the  power  company  for  damages.  It  was  held 
that  the  power  company’s  duty  was  to  put  its  wires 
high  enough  to  leave  the  road  safe,  not  for  any  and  all 
travel,  but  for  usual  and  ordinary  travel.  There  was 
no  evidence  tending  to  prove  that,  at  the  time  it  built 
its  power  line,  hay  derricks  45  feet  high,  including  the 
projection  of  the  arm  above  the  mast,  were  so  gener¬ 
ally  hauled  over  that  road  as  to  constitute  ordinary 
and  usual  travel,  and,  if  it  was  a  fact,  it  was  a  fact  that 
the  court  could  not  judicially  know.  Judgment  for  the 
defendant  on  a  directed  verdict  was  affirmed. 

Mayhew  v.  Yakima  Power  Co.,  72  Wash.,  431,  130 
Pac.,  485. 


Rival  Claims  to  Light  Plant 

A  MONT  AN  A  mining  company  erected  an  electric 
light  and  power  plant  for  its  own  use  upon  one 
of  a  group  of  placer  claims  belonging  to  another  with¬ 
out  that  other’s  consent.  The  mining  company  after¬ 
wards  became  bankrupt,  and  the  plant  came  into  the 

24 


possession  of  its  trustee.  The  owner  of  the  land  filed 
a  petition  in  the  bankruptcy  court  to  recover  the  land 
and  the  plant  thereon.  It  was  held  that,  as  the  Mon¬ 
tana  statutes  provide  that  property  taken  for  mining 
and  milling  ores  is  for  a  public  use,  and  may  be  con¬ 
demned  by  an  individual  or  corporation  for  such  use, 
the  trustee  might  defend  on  the  ground  that  the  taking 
was  for  a  public  use,  and  the  court  might  permit  him 
to  retain  the  property  for  the  estate,  and  might  fix  the 
compensation  to  be  paid  the  owner  for  his  land. 

Bear  Gulch  Placer  Mining  Co.  v.  Walsh,  198  Fed., 
351. 


Injury  to  Pedestrian 

AN  ELECTRIC  light  tower  had  been  constructed 
and  was  owned  by  a  city  for  use  in  lighting  a 
section  of  the  city  by  means  of  a  cluster  of  electric 
lights  at  the  top.  A  lighting  company,  under  a  con¬ 
tract  with  the  city,  furnished  the  light  and  the  lamps 
and  kept  them  lighted  and  in  repair.  The  light  com¬ 
pany,  to  enable  its  employee  to  attend  to  the  lighting 
of  the  tower,  maintained  an  unguarded  hoisting  appa¬ 
ratus,  consisting  of  a  basket  in  which  the  employee 
hoisted  himself.  When  not  in  use  the  basket  was 
merely  tied  down  and  not  locked.  While  some  chil¬ 
dren  were  playing  about,  the  basket  became  unfas¬ 
tened,  and  descending  rapidly,  threw  out  a  stone  which 
struck  and  killed  one  of  them.  It  was  held  that  the 
company  was  liable  for  the  death,  notwithstanding 
that  it  did  not  own  the  tower  and  that  at  long  intervals 
a  city  official  used  the  apparatus  to  inspect  the  tower. 

Harris  v.  Eastern  Wisconsin  Ry.  &  Light  Co.,  Wis¬ 
consin  Supreme  Court,  140  N.  W.,  288. 


Ownership  of  Electrical  Company’s  Stock  and 

Bonds 

A  PERSON  who  buys  an  electric  light  plant,  incor¬ 
porates  a  corporation,  sells  the  plant  to  it,  and 
takes  the  corporation’s  stock  and  bonds  in  payment  is 
the  owner  of  the  stock  and  bonds  and  does  not  hold 
them  for  the  benefit  of  the  corporation. 

Malloy  v.  Drumheller,  68  Wash.,  106,  122  Pac., 
1005. 


25 


Lineman — Safe  Place  to  Work 

A  LINEMAN  in  the  employment  of  an  electric 
company  was  sent  to  the  top  of  a  light  pole  on 
which  were  strung  wires  which,  if  a  circuit  was 
formed,  would  cause  his  instant  death.  An  uninsu¬ 
lated  guy  wire  was  sent  up  to  him,  which  he  under¬ 
took  to  fasten  to  the  pole.  The  end  of  the  guy  wire 
came  in  contact  with  the  ground,  forming  a  circuit, 
and  when  the  lineman  came  in  contact  with  the  feed 
wire,  he  was  killed.  In  holding  the  company  liable 
for  his  death,  it  was  said  that  his  work  required  him 
to  be  on  the  pole.  It  was  the  company’s  duty  to  use 
care  commensurate  with  the  danger  toward  keeping 
the  place  safe.  The  place  became  unsafe  not  because 
of  the  presence  of  the  feed  wire,  but  because  the  unin¬ 
sulated  guy  wire  came  in  contact  with  the  ground. 
If  it  had  not  been  allowed  to  do  so,  the  lineman  could 
have  remained  in  contact  with  the  feed  wire  indefi¬ 
nitely  without  injury.  It  was  the  company’s  duty  to 
prevent  contact  of  the  guy  wire  with  the  ground,  and 
the  lineman  had  the  right  to  rely  upon  the  performance 
of  his  duty.  It  was  the  company’s  duty  to  know  of  the 
perilous  situation  and  to  guard  against  it.  This  duty 
could  not  be  delegated  so  as  to  allow  the  company 
to  escape  liability. 

Evansville  Gas  &  Electric  Light  Co.  v.  Robertson, 
Indiana  Appellate  Court,  100  N.  E.,  689. 


Injuries  Caused  by  Independent  Contractor 

IN  AN  ACTION  against  a  power  company  for  in¬ 
juries  received  by  tripping  over  a  wire  stretched 
across  the  sidewalk,  the  company’s  principal  defense 
was  that,  having  been  ordered  by  the  city  to  remove 
certain  poles  and  wires,  it  employed  an  independent 
contractor  to  do  the  work;  that  the  work  was  done 
wholly  under  his  management  and  control,  and  that 
it  was  through  the  negligence  of  his  employees  and 
not  of  the  employees  of  the  power  company  that  the 
accident  occurred.  Judgment  for  the  plaintiff  was  re¬ 
versed  on  the  ground  that  the  injuries  were  not  caused 
by  the  negligence  of  the  power  company’s  employees. 

Winslow  v.  Glendale  Light  &  Power  Co.,  164  Cal., 
688,  130  Pac.,  427. 


26 


Assessment  of  Electric  Companies 

IN  ASSESSING  an  electric  company’s  franchise  to 
use  public  highways  in  a  county,  the  requirement 
under  California  Const.,  Art.  13,  Sec.  10,  that  property 
be  assessed  in  the  district  in  which  it  is  situated,  etc., 
was  held  to  be  substantially  complied  with  by  valuing 
the  franchise  in  each  school  district  according  to  the 
number  of  miles  of  transmission  lines  in  that  district, 
without  reference  to  the  extent  of  the  public  highways 
over  which  the  lines  were  erected.  It  was  also  held 
that,  while  in  the  absence  of  fraud,  mere  irregularities 
in  a  tax  assessment  do  not  vitiate  it,  the  action  of 
a  board  of  equilization  in  confirming  the  assessment  on 
the  franchise  of  an  electric  company  to  use  the  public 
highways  of  a  school  district,  is  void,  if  the  company 
did  not  use  any  part  of  the  highways  in  that  district. 

Kern  River  Co.  v.  Los  Angeles  County,  164  Cal., 
751,  130  Pac.,  714. 


Nature  of  Franchises 

IN  the  granting  of  franchises  for  the  use  of  its 
streets  and  highways  by  street  railways,  water¬ 
works,  electric  light  and  telephone  or  other  public 
service  companies,  a  city  is  not  ordinarily  acting  in  a 
private  or  proprietary  capacity,  or  as  a  corporation  for 
pecuniary  profit,  but  as  an  instrumentality  of  govern¬ 
ment,  acting  as  an  agent  for  the  state  in  a  sovereign 
capacity.  Its  franchise  is  in  effect  a  grant  from  the 
state  and  is  to  be  interpreted  as  such.  In  contracting 
with  water  companies  for  water  for  fire  or  other  pur¬ 
poses,  and  with  electric  light  companies  for  lighting  its 
streets  and  in  other  such  matters,  it  is  acting  in  a 
private  and  proprietary  capacity. 

State  v.  Des  Moines  City  Ry.  Co.,  Iowa  Supreme 
Court,  140  N.  W.,  437. 


Electrical  Supplies — Liability  of  Municipalities 

ACTION  was  brought  by  an  electric  supply  com¬ 
pany  against  a  city  for  furnishing  and  installing 
the  electric  fixtures  in  the  city  hall  at  the  time  it  was 
remodeled.  There  was  a  general  contractor  for  the 
work  of  remodeling,  but  the  plaintiff  dealt  with  and 

27 


extended  credit  in  the  transaction  solely  to  the  city 
authorities,  regarding  them  as  acting  for  the  city.  The 
defenses  were  that  the  general  contractor,  under  his 
contract  with  the  city,  was  required  to  furnish  these 
fixtures,  and  that  the  city  authorities  had  no  power 
to  make  the  contract  with  the  plaintiff.  It  was  held 
that,  assuming  that  the  contract  required  the  general 
contractor  to  furnish  the  fixtures,  and  that  they  were 
covered  by  and  to  be  paid  for  out  of  the  contract  price 
to  be  paid  the  general  contractor  by  the  city,  yet  if  the 
plaintiff,  not  being  a  party  to  that  contract  and  with 
no  knowledge  or  notice  of  it,  through  bona  fide  negoti¬ 
ations  had  with  the  mayor  and  building  committee  of 
the  aldermanic  board,  did,  as  a  matter  of  fact,  furnish 
the  fixtures  to  the  city  on  its  sole  responsibility,  and 
the  city  accepted,  retained,  and  used  the  fixtures  so 
furnished  by  the  plaintiff  and  refused  to  return  or  pay 
for  them  on  proper  demand  made,  the  city  would 
nevertheless  be  liable  to  the  plaintiff  for  the  reasonable 
value  of  the  fixtures  under  an  implied  contract. 

Even  if  it  were  true  that  the  plaintiff  could  not  re¬ 
cover  on  a  contract  because  the  city  authorities  with 
whom  he  dealt  were  not  authorized  to  bind  the  munici¬ 
pality,  and  the  aldermanic  board  as  such,  which  only 
would  have  been  authorized  to  bind  the  city,  did  not 
act  in  the  matter,  yet  the  plaintiff  would  not  on  that 
account  be  without  a  remedy  and  would  not  be  pre¬ 
cluded  from  a  recovery  in  an  action  of  assumpsit  of 
the  reasonable  value  of  the  fixtures  on  an  implied  con¬ 
tract.  The  right  to  recover  on  the  implied  contract  is 
based  on  the  contract  that  the  law  makes  between 
the  parties  implying  a  promise  to  pay  a  reasonable 
compensation  for  the  property  retained  to  the  use  and 
benefit  of  the  municipality.  Restitution  of  the  prop¬ 
erty  itself  might  be  enforced  in  a  proper  case,  but 
the  plaintiff  was  not  confined  to  the  right  to  recover 
the  property.  Judgment  for  the  plaintiff  was  affirmed. 

City  of  Mobile  v.  Mobile  Electric  Supply  Co.,  6  Ala. 
App.,  131,  60  So.,  426. 


Mechanics’  Lien  for  Wiring  Buildings 

IN  AN  ACTION  to  foreclose  a  mechanic’s  lien  for 
wiring  a  building  it  was  held  that  an  averment  that 
the  electric  work  and  wiring  done  by  the  claimant  was 
“in  and  upon  the  building”  was  a  sufficient  averment 

28 


that  it  was  “part  of  ’  the  building.  The  building  was 
upon  an  undivided  piece  of  real  estate  owned  jointly 
by  the  defendants,  and  there  was  another  building 
upon  the  lot  for  which  none  of  the  materials  or  labor 
was  furnished.  It  was  held  that  the  lien  under  the 
Indiana  Mechanics’  Lien  Act  covered  the  entire  tract. 

Judah  v.  F.  H.  Cheyne  Electric  Co.,  Indiana  Appel¬ 
late  Court,  101  N.  E.,  1039. 


Charged  Guy  Wire  in  Street — Contact — Proximate 

Cause 

IN  AN  ACTION  for  death  it  appeared  that  about 
2.30  o’clock  on  a  morning  of  November  a  current 
of  electricity  from  the  defendant  electric  company’s 
feed  wire  carrying  5,000  volts  was  shunted  to  a  guy 
wire  in  the  street,  causing  a  ground.  About  5  o’clock 
a.  m.  the  dead  body  of  the  deceased  was  found  lying 
face  upwards,  in  close  proximity  to  the  guy  wire.  The 
left  hand  and  back  of  the  head  were  badly  burned,  the 
right  hand  charred,  and  the  clothing  mostly  burned 
from  the  body.  The  slippers  worn  by  the  deceased  were 
off  some  distance  from  the  feet  as  though  thrown  off. 
The  deceased  had  left  his  home  to  go  to  a  saloon  and 
as  he  passed  the  spot  he  saw  fire  blazing  from  the 
earth  in  the  immediate  vicinity  of  the  guy  rod.  Shortly 
afterwards  he  left  the  saloon,  with  the  remark  that  he 
intended  to  investigate  what  he  considered  a  peculiar 
phenomenon.  A  few  minutes  after  that  his  body  was 
discovered  in  a  position  indicating  that  he  had  taken 
hold  of  the  charged  guy  wire.  It  sufficiently  appeared 
to  the  court  that  the  deceased  at  the  time  he  was  killed 
was  at  a  place  where  he  had  a  right  to  be,  and  was  not 
on  the  private  property  of  the  defendant.  He  did  not 
sustain  toward  the  defendant  when  killed  the  relation 
of  a  trespasser.  Being  lawfully  on  the  highway  the 
defendant  owed  as  to  him  the  high  degree  of  care 
commensurate  with  the  danger  incident  to  the  prox¬ 
imity  of  the  wires  so  charged.  His  contact  with  the 
wire,  if  negligent,  was  held  to  be  an  act  of  a  con¬ 
curring  and  contributory  character,  and  not  an  inde¬ 
pendent,  sole,  or  efficient  cause  of  his  death,  and  the 
defendant’s  negligence  in  permitting  the  guy  wire  to 

29 


become  charged  was  the  proximate  cause  thereof.  In 
the  absence  of  proof  as  to  whether  his  contact  with  the 
wire  was  voluntary,  intentional  or  the  result  of  acci¬ 
dent,  such  contact  did  not  establish  that  the  deceased 
was  negligent  as  a  matter  of  law,  but  the  question  was 
one  for  the  jury.  Judgment  for  the  plaintiff  was 
affirmed. 

Michigan  City  Gas  &  Electric  Co.  v.  Dibka,  Indiana 
Appellate  Court,  100  N.  E.,  877. 


Safeguards  Against  Lighting 

T  N  AN  ACTION  for  the  burning  of  a  store  by  light- 
1  ning  conveyed  by  the  defendant’s  telephone  wires 
it  was  held  that  a  telephone  company  may  be  liable  in 
damage  for  a  fire  caused  in  such  a  manner  if  it  is 
shown  that  none  of  the  usual  safeguards  have  been 
used.  It  could  not  be  held  that  the  indirect  effects  of 
the  indirect  forces  of  a  stroke  of  lightning  might  not 
be  minimized  and  rendered  harmless  by  those  safe¬ 
guards  in  common  use;  and  it  was  actionable  negli¬ 
gence  to  fail  to  provide  any  safeguards. 

Peninsular  Telephone  Co.  v.  McCaskill,  64  Fla.,  420, 
60  So.,  338. 


Sale  of  Generator-Acceptance 

IN  AN  ACTION  for  the  contract  price  for  the  in¬ 
stallation  of  a  generator,  it  was  contended  by  the 
seller  that  its  use  by  the  defendant  for  a  short  time 
was  tantamount  to  an  acceptance  under  the  contract, 
which  provided  that  operation  should  constitute  ac¬ 
ceptance.  It  appeared,  however,  that  the  whole  of 
such  operation  was  in  an  effort  to  procure,  if  possible, 
information  as  to  any  existing  defects,  and  to  ascertain 
if  the  generator  could  be  made  to  operate.  It  was 
held  that  this  operation  did  not  constitute  an  ac¬ 
ceptance. 

Sherman  v.  Ayers,  20  Cal.  App.,  733,  130  Pac.,  163. 

30 


Broken  Wire — Contributory  Negligence 

A  BOY  11^2  years  old  playing  in  a  street  was  killed 
by  contact  with  a  high  voltage  wire  which  had 
become  detached  four  days  before  and  hung  nearly  to 
the  ground  beside  the  gutter.  Both  his  hands  were 
badly  burned,  showing  that  he  had  grasped  the  wire. 
The  light  company  was  guilty  of  negligence  in  leaving 
the  wire  in  such  a  condition  for  such  a  length  of 
time,  but  in  an  action  for  the  child’s  death  it  relied 
upon  the  child’s  contributory  negligence.  There  was 
evidence  of  three  witnesses  that  the  boy  picked  up 
the  wire  and  was  told  to  put  it  down,  that  it  was 
dangerous,  that  the  lights  would  soon  be  turned  on, 
and  that  he  would  be  killed,  and  also  that  the  lights 
were  not  turned  on  then  but  were  turned  on  soon 
thereafter,  and  the  boy  then  fell  dead.  There  was 
some  evidence  for  the  plaintiff  tending  to  show  that 
the  lights  were  burning  when  the  accident  happened, 
and  some  on  the  part  of  the  defendant  to  the  effect 
that  the  wire  had  been  cut  before  the  time  of  the 
accident.  The  trial  court  directed  a  verdict  for  the 
defendant,  but  this  was  reversed  on  appeal  for  the 
reason  that,  there  being  some  evidence  to  contradict 
that  adduced  by  the  defendant  to  show  contributory 
negligence,  the  question  should  have  been  submitted  to 
a  jury,  rather  than  ruled  upon  by  the  court  as  a  mat¬ 
ter  of  law. 

State  v.  Crisfield  Ice  Mfg.  Co,  118  Md,  521,  85 
Atl,  615. 


Ledger  as  Evidence  of  Account 

ACTION  was  brought  by  an  electric  company  for 
the  reasonable  value  of  materials  furnished  and 
labor  performed  for  the  defendant,  and  also  on  an  ex¬ 
press  contract.  It  was  held  that  a  ledger  kept  by  the 
company  in  the  regular  course  of  business  by  a  book¬ 
keeper,  who  had  no  personal  knowledge  of  the  amount 
of  the  material  charged  thereon,  but  who  made  entries 
from  memoranda  furnished  by  the  employees  who  sent 
out  the  material,  was  admissible  as  affording  some 
proof  of  the  account. 

Indianapolis  Outfitting  Co.  v.  Cheyne  Electric  Co, 
Indiana  Appellate  Court,  100  N.  E,  468. 

31 


Sale  of  Storage  Battery — Surety  Bond  for  Purchase 

Price 

ACTION  was  brought  against  the  sureties  on  a 
bond  to  secure  the  return  of  the  purchase  price 
of  a  storage  battery  if  the  use  of  the  battery  should 
be  enjoined  and  the  plaintiff  elected  to  rescind  the  con¬ 
tract  of  sale.  The  seller  of  the  battery  was  not  a  party 
to  the  action.  It  appeared  that  the  battery  in  the  plain¬ 
tiff’s  hands,  after  he  had  exercised  his  option  to  re¬ 
scind,  was  not  a  security  for  the  payment  for  which 
the  sureties  bound  themselves.  It  was  held  that  the 
sureties  could  not  set  off  the  damages  sustained  by  the 
seller  from  the  plaintiff’s  failure  to  properly  care  for 
the  battery.  The  right  of  action,  for  the  plaintiff’s  fail¬ 
ure  to  care  for  the  battery  was  personal  to  the  seller, 
and  not  determinable  in  a  proceeding  to  which  he  was 
not  a  party. 

Graham  v.  Middleby,  213  Mass.,  437,  100  N.  E., 
750. 


Damages  to  Property — Burden  of  Proof  of  Con¬ 
tributory  Negligence 

ACTION  was  brought  by  a  telephone  company 
against  three  power  companies  for  damages  to 
its  telephone  system  caused  by  the  falling  of  the  de¬ 
fendants’  feed  and  high-tension  wires,  which  were 
stretched  across  the  plaintiff’s  telephone  wires,  upon 
these  wires  during  a  sleet  storm.  It  was  held  that  the 
telephone  company  must  still  prove  its  freedom  from 
contributory  negligence.  The  Indiana  statute  which 
provides  that,  in  actions  for  damages  for  negligence 
causing  personal  injuries  or  death  the  plaintiff  need 
not  prove  want  of  contributory  negligence,  which  shall 
be  a  matter  of  defense,  does  not  apply  to  tort  actions 
for  injuries  to  property. 

Ft.  Wayne  V.  W.  &  L.  Traction  Co.  v.  Monroeville 
Howe  Telephone  Co.,  Indiana  Supreme  Court,  100  N. 
E.,  68. 


32 


Dangerous  Pole  in  Street — Liability 

A  BOY,  while  playing  in  the  highway,  leaned 
against  an  electric  light  pole  and  came  in  con¬ 
tact  with  a  chain  used  to  raise  and  lower  the  lamp, 
receiving  an  electric  shock  which  caused  his  death. 
In  an  action  therefor  the  negligence  complained  of  was 
the  failure  to  have  the  chain  beyond  the  reach  of  a  per¬ 
son  who  came  in  contact  with  the  pole,  or  to  have 
thereon  an  insulator.  It  was  held  that  the  boy  was 
rightfully  in  the  highway,  at  the  time  of  the  accident, 
and  was  guilty  of  no  trespass  against  the  electric  com¬ 
pany.  At  most,  the  relation  existing  between  it  and 
the  boy  was  that  which  arises  between  two  licensees 
upon  land  of  a  third  party.  Each  must  use  ordinary 
care  not  to  injure  the  other  or  his  property.  It  was 
admitted  that  the  electric  company  knew  that  children 
were  in  the  habit  of  playing  near  its  dangerous  pole, 
and  that  they  were  liable  to  be  seriously  injured  by  the 
faulty  construction  of  the  appliances  attached  to  it.  It 
was  therefore  held  that  its  negligence  was  the  proxi¬ 
mate  cause  of  the  injury. 

Thompson  v.  Tilton  Electric  Light  &  Power  Co., 
New  Hampshire  Supreme  Court,  88  Atl.,  216. 


Construction  Contract — “Cost  of  Accidents” 

AN  ELECTRICIAN  in  the  employ  of  a  company 
engaged  in  the  construction  work  for  a  railroad 
under  a  contract  to  electrify  its  lines  recovered  a  judg¬ 
ment  for  personal  injuries  against  his  employer.  Part 
of  the  judgment  was  paid  by  a  casualty  company,  and 
the  construction  company  sued  the  railroad  company 
for  the  balance.  The  construction  company  worked 
on  a  percentage  contract  which  provided  that  its  com¬ 
pensation  should  be  10  per  cent,  of  the  actual  cost  of 
the  work,  and  that  the  total  cost  should  include,  among 
other  things,  the  “cost  of  accidents.”  It  was  held 
that  the  construction  company  could  recover  from  the 
railroad  company  the  amount  of  the  judgment,  less  the 
sum  paid  by  the  casualty  insurance  company. 

Westinghouse-Church-Kerr  Co.  v.  Long  Island  R.  R. 
Co.,  80  Misc.  (N.  Y.),  127,  141  N.  Y.  Supp.,  644. 

33 


Negligence  of  Superintendent — Evidence 


AN  ELECTRIC  LIGHT  COMPANY  had  a  rule 
that,  when  the  current  was  turned  off  while  em¬ 
ployees  were  at  work  on  the  wire,  it  should  never 
be  turned  on  until  word  was  received  directly  from 
those  working  on  the  line  that  they  were  finished  and 
off  the  line.  The  superintendent  of  the  company,  who 
lived  a  short  distance  from  the  power  house,  heard 
the  telephone  bell  at  the  power  house,  and  called  to 
an  employee  there  to  attend  to  it.  The  employee  knew 
that  there  were  men  working  on  the  line,  but  did  not 
hear  what  the  superintendent  said.  He  asked  him  if 
the  workmen  had  telephoned,  and  he  claimed  that 
the  superintendent  nodded  his  head.  He  then  went  to 
the  telephone,  and  receiving  no  answer,  he  turned  on 
the  current,  killing  an  employee.  In  an  action  for  the 
death  it  was  held  that  these  facts  did  not  show  neg¬ 
ligence  on  the  part  of  the  superintendent,  but  that  the 
accident  was  due  to  the  negligence  of  a  fellow  serv¬ 
ant  of  the  deceased,  for  which  the  employer  was  not 
liable. 

Luther  v.  Standard  Light,  Heat  &  Power  Co.,  208 
N.  Y.,  383,  102  N.  E,  514. 


Telephone  Company’s  Use  of  Electrical  Company’s 

Pole 

A  TELEPHONE  COMPANY  attached  its  wires 
to  the  pole  of  an  electric  light  company  without 
any  mutuality  of  benefit  or  any  contractual  relation, 
and  without  compensation,  but  solely  by  the  electric 
company’s  permission,  implied  by  its  passive  acquies¬ 
cence.  A  telephone  lineman  was  killed  by  contact  with 
the  electric  company’s  wires  while  trying  to  remedy  a 
defective  condition  of  a  telephone  wire.  In  an  action 
against  the  electric  company  it  was  held  that  there  was 
no  express  or  implied  invitation  for  the  telephone  com¬ 
pany,  or  its  employee,  to  go  upon  the  pole,  and  in  do¬ 
ing  so  they  were  volunteers  or  licensees  using  it  sub¬ 
ject  to  all  the  conditions  and  perils,  as  to  whom  the 
electric  company  was  only  bound  to  abstain  from  in¬ 
flicting  intentional,  wanton,  or  wilful  injury.  The  pole 
of  an  electric  company  placed  in  the  street  and  which 

34 


is  its  private  property,  is  not  property  that  any  one 
has  a  right  to  use  and  assume  to  be  in  a  safe  condition. 

Heskell  v.  Auburn  Light,  Heat  &  Power  Co.,  209 
N.  Y.,  86,  102  N.  E.,  540. 


Small  Wire  Falling  Across  High  Power  Wire — 

Liability 

ACTION  was  brought  against  a  telephone  and  a 
light  company  for  damages  for  injuries  caused 
by  contact  with  a  telephone  wire  which  had  fallen 
across  a  wire  of  the  light  company  and  hung  into  the 
street.  A  verdict  was  directed  for  the  light  company, 
and  returned  against  the  telephone  company,  which  ap¬ 
pealed  from  the  judgment  thereon.  It  was  held  that 
if  an  accident  occurred  because  of  electric  wires  im¬ 
properly  insulated  hanging  over  a  street,  it  would  be 
immaterial  upon  the  electric  company’s  liability 
whether  they  hung  there  for  a  long  or  a  short  time. 
The  negligence  did  not  consist  in  the  length  of  time 
they  hung  over  the  street.  Where  one  is  injured  by 
contact  with  an  electric  wire  suspended  over  a  street, 
the  presence  of  .the  wire  is  a  presumption  of  negligence, 
placing  the  burden  upon  the  electric  company  to  free 
itself  from  the  effect  of  such  presumption.  It  was 
held  that  it  is  the  duty  of  an  electric  company  which 
maintains  smaller  wires  suspended  above  highly 
charged  electric  wires  to  have  the  small  wires  per¬ 
fectly  insulated,  so  that  should  they  fall  upon  the 
other  wires  so  as  to  receive  a  sufficient  charge  of  elec¬ 
tricity  as  to  make  them  dangerous  to  life,  injury  would 
not  result.  The  proximate  cause  of  an  injury  from 
contact  with  a  defectively  insulated  wire  which  fell 
upon  a  large  power  wire,  and  hung  over  the  street 
charged  with  electricity  from  the  power  wire,  was 
the  falling  of  the  uninsulated  wire  upon  the  power 
wire,  since  the  accident  would  not  have  occurred  with¬ 
out  that.  If  an  electric  wire  was  in  such  a  condition 
that  it  would  break  in  the  absence  of  storm  or  unusual 
force,  the  electric  company  was  chargeable  with  knowl¬ 
edge  that  it  might  break,  and  that  its  insulation  was 
defective. 

Southwestern  Tel.  &  Tel.  Co.  v.  Shirley,  Texas  Civil 
Appeals,  155  S.  W.,  663. 


35 


Sale  of  Electric  Motors — Time  of  Delivery 

IN  AN  ACTION  for  the  price  of  electric  motors  sold 
to  a  company  which  had  resold  them  to  the  Gov¬ 
ernment  under  a  contract  requiring  their  delivery 
within  a  certain  time  under  penalty  of  a  forfeiture, 
the  defense  was  based  upon  damages  due  to  delay  in 
delivering  the  motors  to  the  Government,  for  which 
delay  it  was  alleged  the  plaintiff  was  responsible.  It 
was  held  that  the  plaintiff  was  not  necessarily  bound 
by  the  defendant’s  liability  for  a  penalty  because  the 
plaintiff  was  “acquainted”  and  “advised”  of  the  de¬ 
fendant’s  contract  with  the  Government.  It  would  be 
natural  and  usual,  if  the  plaintiff  was  to  be  bound  by 
some  undertaking  of  the  defendant,  that  the  details  of 
such  understanding  should  be  included  in  the  plaintiff’s 
contract  with  the  defendant.  The  defendant  might 
have  assumed  all  the  risks  of  delays  in  consideration  of 
its  expected  profit  from  the  contract  with  the  United 
States.  It  could  not  reasonably  be  predicated  from 
the  defendant’s  own  undertaking  that  the  plaintiff  as¬ 
sumed  its  risk. 

General  Electric  Co.  v.  Camden  Iron  Works  (Pa.), 

86  Atl.,  1012. 


Contract  for  Electrical  Supplies — Construction 

HE  occupants  of  a  factory  building,  in  having 


1  alterations  and  repairs  made  therein,  employed 
electrical  contractors  to  put  in  an  electrical  lighting 
equipment.  The  contractors  ordered  the  equipment 
from  the  plaintiffs,  who  wrote  to  the  occupants  of  the 
building,  the  defendants,  that  the  contractors  had  no 
account  with  them,  but  had  informed  them  that  the 
defendants  would  pay  for  the  materials  on  the  comple¬ 
tion  of  the  work,  upon  receipt  of  an  order  by  the 
contractors.  The  defendants  wrote  on  the  bottom  of 
this  letter :  “Will  do  as  above  on  receipt  of  an  order,” 
and  signed  it.  The  contractors  wrote,  underneath  that, 
that  they  agreed  to  the  above  plan.  It  was  held  that  as 
the  whole  instrument  was  to  be  construed  together,  it 
could  not  be  taken  that  the  plaintiffs  were  excused  from 
producing  and  serving  upon  the  defendants  the  order 
mentioned,  the  indorsement  by  the  contractors  being 
an  aceptance  of  the  plan  made,  and  not  an  order. 


Pettingell- Andrews  Co.  v.  Schrafft,  214  Mass.,  459, 
102  N.  E.,  308. 


36 


Appropriation  of  Water  Power — Power  Companies’ 

Riparian  Rights 

IN  AN  ACTION  for  injunction  against  a  power 
company  it  was  held  that  the  right  of  the  power 
company,  a  riparian  owner,  to  use  the  water  of  a  float¬ 
able  stream  for  power  purposes  by  construction  of  a 
dam,  intake,  storage  reservoir,  and  tailrace  returning 
the  water  to  the  stream  at  a  distance  below  the  intake, 
and  the  right  of  a  loom  company  to  drive  shingle  bolts, 
were  correlative,  and  each  must  use  his  right  with  due 
regard  to  the  existence  and  protection  of  the  other. 

In  the  State  of  Washington,  where  no  notice  of  ap¬ 
propriation  is  required  for  taking  water  for  power 
purposes,  the  right  relates  back  to  the  first  substantial 
act  of  the  appropriator  for  the  acquisition  of  the  right, 
whether  that  act  be  the  actual  commencement  of  con¬ 
struction  work  or  other  necessary  work  incidental 
thereto,  provided  that  reasonable  diligence  is  exercised 
in  finally  protecting  the  appropriation.  A  power  com¬ 
pany  acquiring  all  riparian  rights  attached  to  all  lands 
abutting  a  river  on  either  bank,  between  its  intake  and 
tailrace,  and  establishing  its  rights  as  an  appropriator, 
is  entitled  to  such  riparian  rights  as  against  land  sub¬ 
sequently  becoming  riparian  by  reason  of  a  change  in 
the  river’s  course. 

Sumner  Lumber  &  Shingle  Co.  v.  Pacific  Coast 
Power  Co.,  72  Wash.,  631,  131  Pac.,  220. 


Broken  Wire — Evidence  of  Cause  and  Time  of 

Break 

A  BOY  left  his  home  about  7  o’clock  in  the  morn¬ 
ing  and  a  few  minutes  later  was  found  lying  on 
the  street  with  a  severe  burn  in  his  hand,  caused  by 
contact  with  a  broken  light  wire,  from  which  burn 
he  died.  In  an  action  for  his  death  it  was  not  shown 
what  caused  the  break  in  the  wire,  or  how  long  it  lay 
upon  the  ground  after  it  was  broken.  It  was  held  that 
it  was  not  enough  to  prove  the  mere  breaking  of  the 
wire  and  that  it  caused  the  injury.  The  question  was : 
“Did  the  negligence  of  the  defendant  company  cause 
the  wire  to  break?”  If  that  did  not  appear,  there  was 

37 


no  liability  on  the  defendant.  As  the  evidence  did  not 
show  the  cause  of  the  break,  or  that  the  company  failed 
to  remedy  the  trouble  with  due  and  reasonable  alac¬ 
rity,  the  company  was  held  not  liable. 

Kahn  v.  Kittanning  Electric  Light  Co.,  238  Pa.,  70, 
85  AtL,  1117. 


Selling  Use  of  Poles — Liability  to  Buying  Com¬ 


pany’s  Employees 


NE  TELEPHONE  COMPANY  which  sells  to 


w  another  the  right  to  maintain  a  wire  upon  its 
poles  is  liable  for  injury  to  an  employee  of  the 
other  company,  who  is  himself  free  from  fault, 
which  is  occasioned  by  the  failure  of  the  owning 
company  to  use  reasonable  diligence  to  keep  the 
poles  in  such  condition  that  they  can  be  used 
with  safety  in  the  customary  manner.  In  such 
a  case,  where  the  owning  company  for  the  pur¬ 
pose  of  installing  a  new  set  of  poles  has  stripped  its 
wires  from  the  old  ones,  and  an  employee  of  the  other 
-company  is  killed  while  removing  the  remaining  wire 
by  the  breaking  of  a  pole  caused  by  a  weakness  not 
discoverable  by  mere  observation,  it  is  not  necessarily 
relieved  from  liability  by  the  fact  that  it  was  engaged 
in  replacing  the  old  poles.  A  general  warning  to  the 
workmen  to  be  careful  while  removing  the  wire  is  not 
necessarily  sufficient  to  relieve  the  owning  company 
from  further  responsibility.  The  owning  company  is 
not,  as  a  matter  of  law,  exempt  from  liability  on  the 
ground  that  the  workman  was  bound,  at  his  peril,  to 
ascertain  the  condition  of  the  pole  before  climbing  it. 

Aaron  v.  Missouri  &  K.  Telephone  Co.,  89  Kan., 
186,  131  Pac.,  582. 


Defective  Electrical  Machine — Injuries  to  Servant 

A  WORKMAN  while  using  an  emery  wheel  re¬ 
ceived  a  shock  and  was  thrown  from  the  top  of 
a  car  on  which  he  was  working,  receiving  injuries  for 
which  he  sued  his  employer.  He  had  used  the  machine 
for  some  time  before,  and,  the  day  before  the  injury, 


38 


ascertaining  that  the  hood  was  loose,  took  the  machine 
to  his  employer’s  repair  man  for  inspection  and  repair. 
There  was  no  evidence  as  to  the  particular  defect  in 
the  machine  that  permitted  the  escape  of  the  electricity ; 
but  it  appeared  that  it  might  have  been  caused  by  the 
wearing  off  of  the  insulation  on  the  conductor  cord, 
or  by  the  detachment  of  the  fine  wires  therein.  It  was 
held  that  such  facts  were  insufficient  to  show  the  de¬ 
fendant’s  negligence,  under  the  rule  that  a  master, 
having  adopted  the  customary  and  approved  methods 
or  tests  for  the  discovery  of  defects  in  his  appliances, 
discharges  his  duty  to  his  employees. 

American  Car  &  Foundry  Co.  v.  Dietz,  C.  C.  A.,  203 
Fed.,  469. 


Proximate  Cause  of  Injury 

IN  AN  ACTION  by  the  conductor  of  a  street  car 
against  an  electric  light  company  for  injuries  re¬ 
ceived  by  the  breaking  of  a  glass  globe  which  was  struck 
by  the  trolley  pole,  the  plaintiff’s  declaration  alleged 
that,  while  the  conductor  was  exercising  due  care  in 
swinging  the  pole  around  it  came  in  violent  contact  with 
the  globe  of  an  arc  light  negligently  suspended  less  than 
14  feet  from  the  ground.  It  was  held  that  the  declara¬ 
tion  did  not  on  its  face  show  that  the  negligence  of  the 
company  was  not  the  cause  of  the  injury,  since  the  act 
of  the  conductor,  if  he  was  not  negligent,  was  merely 
the  occasion  of  the  injury,  and  not  an  intervening 
proximate  cause. 

Rollins  v.  Central  Maine  Power  Co.,  Maine  Supreme 
Court,  88  Atl.,  86. 


Light  Wire  Sagging  Over  Railroad  Track — Duty  of 

Railroad  Company 


AN  ELECTRIC  LIGHT  COMPANY  permitted  a 
wire  which  crossed  a  railroad  track  to  sag  so  that 
it  might  come  in  contact  with  cars  thereon.  The  rail¬ 
road  company’s  employees  subsequently  negligently 
shoved  some  cars  across  the  public  street  against  the 
wire.  By  the  exercise  of  ordinary  care  they  should 
have  known  that  the  wire  was  in  dangerous  proximity 

39 


to  the  track  and  likely  to  catch  on  the  cars.  They 
allowed  the  cars  to  continue  after  collision  with  the 
wire  until  it  broke  and  was  violently  thrown  against  a 
pedestrian  in  the  street,  who  was  injured  thereby.  In 
an  action  against  the  railroad  company  it  was  held  that, 
since  the  negligence  of  the  electric  light  company  did 
not  first  occur  at  the  time  of  the  accident,  but  before, 
and  resulted  in  a  condition  which  might  have  been  and 
was  in  fact  seen,  and  which  was  dangerous  not  by 
itself  alone  but  in  connection  with  the  operation  of  the 
railroad,  it  was  the  duty  of  those  operating  the  railroad 
across  the  public  street  to  exercise  reasonable  care  to 
observe  and  guard  against  obstructions  to  the  passage 
of  the  cars,  a  collision  with  which  might  naturally 
cause  injury  to  persons  on  the  highway.  The  railroad 
company  was  held  liable. 

Chicago  Great  Western  Co.  v.  Hulbert,  C.  C.  A., 
205  Fed,  248. 


Contact  of  Power  and  Telephone  Wires — -Guard 

Wires 

IN  AN  ACTION  against  a  light  and  power  company 
for  personal  injuries  caused  by  contact  with  a  tele¬ 
phone  wire  which  had  fallen  across  the  defendant’s 
wires  during  a  storm  the  plaintiff  relied  for  negligence 
upon  violation  of  a  city  ordinance  which  provided  that 
where  angles  occur  in  electric  lines  subjecting  the  poles 
to  increased  strains,  guard  wires  must  be  placed  at  the 
outer  end  of  crossarms,  and  also  whenever  their  pres¬ 
ence  will  prevent  telephone,  telegraph,  or  other  wires 
from  coming  into  accidental  contact  with  an  electric 
light  and  trolley  wire.  It  also  provided  that,  when  it 
is  necessary  for  electric  light  and  trolley  wires  to  run 
under  telegraph,  telephone,  or  fire  alarm  wires,  per¬ 
mission  must  be  granted  to  do  so,  and  the  company 
running  the  wires  shall  pay  the  expense  of  raising  the 
other  wires.  It  was  held  that  the  ordinance  requires 
the  erection  and  maintenance  of  guard  wires  only  by 
the  company  last  erecting  its  wires.  As  the  power 
wires  had  been  erected  first,  it  was  the  duty  of  the  tele¬ 
phone  company  to  erect  the  necessary  guards. 

But  the  ordinance  did  not  relieve  the  light  and  power 
company  from  its  common-law  duty  of  erecting  proper 
guard  wires  to  afford  reasonable  protection  to  the  pub- 

40 


lie,  as  against  injuries  from  a  crossing  or  contact  of 
the  wires.  Wantonness  in  heavily  charging  its  wire 
was  charged  against  the  defendant.  There  was  no 
proof  that  the  wire  was  so  heavily  charged  as  to  render 
injury  likely  or  probable  under  normal  conditions,  or 
that  the  agents  or  servants  of  the  defendant  knew  of 
the  contact  of  the  two  wires  when  charging  the  trolley 
wire,  or  that  the  telephone  wire  would  probably  fall. 
There  was  therefore  no  proof  showing  negligence  of 
the  power  company,  and  judgment  for  the  plaintiff  was 
reversed. 

Birmingham  Ry.  Light  &  Power  Co.  v.  Cockrum, 
Alabama  Supreme  Court,  60  So.,  304. 


Arbitration  as  to  Rates — Confiscatory  Rates 


N  ELECTRIC  LIGHTING  COMPANY’S 


Jr\  franchise  provided  that  the  rates  to  be 
charged  should  be  decided  every  five  years  by 
arbitration,  and  that  “the  prevailing  average 
current  rates  for  like  services  in  North  Mis¬ 
souri  should  be  the  rates  adopted  at  the  end  of 
each  five  years.”  The  arbitrators  agreed  that  the  rate 
should  be  12  cents  per  kw.-hour,  but  nothing  was  said 
about  a  minimum  charge.  It  was  held  that  the  light 
company  could  not  have  a  minimum  charge  of  one  dol¬ 
lar,  even  though  the  other  cities  in  Northern  Missouri 
had  such  a  minimum  charge.  The  agreement  between 
the  arbitrators,  to  which  no  objection  was  made,  was  a 
binding  contract.  It  could  not  be  contended  that  the 
rate  of  12  cents  per  kw.-hour  was  confiscatory  simply 
because  there  was  a  loss  on  subscribers  who  consumed 
less  than  one  dollar’s  worth.  The  company  was  not 
entitled  to  insist  on  a  profit  on  each  transaction,  but 
only  on  its  entire  business. 

State  v.  Water,  Light  &  Transit  Co.,  Missouri  Su¬ 
preme  Court,  155  S.  W.,  826. 


Rate  Fixing — Effect  of  Public  Utilities  Act 
''HE  Oregon  Public  Utilities  Act  of  1911  vests  in 


l  the  railroad  commission  jurisdiction  to  supervise 
and  regulate  every  public  utility,  including  corpora¬ 
tions  furnishing  heat,  light,  water,  or  power,  and  re- 


41 


quires  such  corporations  to  file  schedules.  It  also  con¬ 
fers  on  the  commission  jurisdiction  to  pass  on  the 
reasonableness  thereof,  and  on  applications  for 
changes  therein.  In  a  suit  by  a  power  company  for 
an  injunction  to  restrain  the  city  from  enforcing  an 
ordinance  fixing  rates  to  be  charged  by  the  company 
for  supplying  the  inhabitants  with  electricity  for  light 
and  power  purposes  it  was  held  that  the  act  superseded 
municipal  charter  provisions  authorizing  cities  to  fix 
rates  to  be  charged  by  such  corporations,  so  far  as  the 
same  were  in  conflict  or  inconsistent  with  the  powers 
of  the  railroad  commission.  The  light  company  hav¬ 
ing  filed  its  rate  schedule  as  prescribed  by  the  act,  the 
subsequent  city  ordinance  prescribing  lower  rates  was 
invalid  and  unenforceable. 

California-Oregon  Power  Co.  v.  City  of  Grant’s 
Pass,  203  Fed.,  173. 


Competition  Between  Electrical  Companies  —  In¬ 
dividual  Privileges — “Franchises”  and 


Powers  “Distinguished” 


NDER  the  Maine  statute,  Rev.  St.  c.  55,  §  1,  as 


u  between  two  electrical  corporations,  the  vested 
rights  of  the  one  first  authorized  are,  to  a  certain  ex¬ 
tent,  protected.  That  statute  provides  that  corpora¬ 
tions  for  the  making  and  supplying  of  electricity  for 
lighting  or  mechanical  purposes  may  be  organized  shall 
make  or  sell  electricity  in  or  to  any  place  in  or  to 
which  another  company  or  person  was  making  or  sell¬ 
ing  electricity.  It  is  held  that  under  this  provision 
authority  in  one  corporation  to  supply  electricity  in  a 
certain  territory  is  prohibitive  of  the  right  of  another 
corporation,  subsequently  organized  under  the  general 
law,  to  supply  it  in  the  same  territory  unless  by  consent 
or  by  special  legislative  authority;  but  the  prohibition 
does  not  extend  to  an  individual. 

An  electrical  company,  which  had  neither  furnished 
electricity  nor  installed  apparatus  in  the  municipality 
for  that  purpose  in  the  city,  invoked  the  remedy  of  quo 
warranto  against  an  individual,  on  the  ground  that 
he  was  usurping  two  public  franchises,  one  to  supply  a 


42 


public  utility,  electricity,  and  the  other  in  occupying 
the  public  streets  of  the  municipality  with  his  poles  and 
wires.  The  defendant,  who  had  no  special  statutory 
rights,  had  obtained  the  permission  of  the  authorities 
of  the  municipality  to  erect  poles  and  wires  in  the 
streets  to  supply  electricity,  and  had  constructed  an 
electric  plant  and  erected  poles  and  strung  wires  and 
was  holding  himself  out  as  conducting  an  electric  light 
and  power  plant  in  the  town  for  supplying  all  wishing 
to  purchase.  This  permission  had  been  granted  under 
Section  16  of  Rev.  St.  c.  55,  which  subjects  every  com¬ 
pany  organized  for  the  transmission  of  electricity,  and 
all  persons  engaged  in  such  business,  to  certain  duties, 
and  requires  a  written  permit  from  municipal  officers 
to  erect  poles,  etc.,  in  public  streets.  It  was  held  that 
the  defendant  was  not  usurping  a  public  franchise; 
that  there  is  a  distinction  between  a  franchise  and  a 
power.  The  definition  of  a  franchise,  as  given  by 
Finch,  adopted  by  Blackstone,  and  accepted  by  every 
authority  since,  is  “a  royal  privilege  or  branch  of  the 
king’s  prerogative  existing  in  the  hands  of  a  subject.” 
It  is  a  privilege  or  immunity  of  a  public  nature  which 
cannot  legally  be  exercised  in  a  natural  or  artificial 
person,  to  carry  on  any  particular  business,  and  is  not 
necessarily  or  usually  a  franchise.  The  right  of  the 
defendant  to  make  and  sell  electricity  was  an  inherent 
right  or  “power”  of  a  natural  person,  and  not  a  “fran¬ 
chise,”  and  the  fact  that  such  power  is  often  conferred 
upon  a  public  service  corporation  did  not  raise  it  to  a 
“franchise.” 

Crawford  Electric  Co.  v.  Knox  County  Power  Co., 
Maine  Supreme  Court,  86  Atl.,  119. 


Contract  of  Sale  of  Electricity — Construction 

THE  owner  of  an  electric  generating  plant  entered 
into  a  contract  whereby  he  agreed  to  construct 
a  substation  for  the  storage  of  electricity,  arid  to  de¬ 
liver  therefrom  to  the  purchaser  such  electric  current 
and  energy  as  should  be  required  by  him,  to  be  trans¬ 
mitted  over  his  own  wires  to  his  patrons  in  neighbor¬ 
hood  municipalities.  The  substation  was  constructed 
and  the  electricity  delivered.  The  contract  called  for 

43 


the  measurement  at  the  substation,  and  the  seller  pre¬ 
sented  statements  for  amounts  due  which,  under  pro¬ 
test  that  an  improper  method  of  measurement  had  been 
adopted,  the  purchaser  paid.  The  purchaser  there¬ 
after  brought  an  action  to  recover  an  amount  which 
he  claimed  to  be  an  overpayment,  brought  about  by  an 
improper  measurement  of  the  electric  current  deliv¬ 
ered.  On  the  trial  it  was  found  that  transformers 
were  located  at  the  substation,  and  also  a  switchboard 
for  measuring  the  current  passing  through.  The  cur¬ 
rent  came  from  the  seller’s  power  plant  at  a  definite 
voltage,  but  in  passing  through  the  transformers  a  cer¬ 
tain  amount  of  it  was  lost.  The  switchboard  was 
placed  in  position  for  measuring  the  current  as  it 
entered  the  station,  and  the  seller  charged  the  pur¬ 
chaser  for  the  quantity  so  delivered.  It  was  the  con¬ 
tention  of  the  purchaser  that  it  was  liable  under  the 
contract  only  for  such  volume  of  electricity  as  was 
actually  delivered  after  its  passage  through  the  trans¬ 
formers.  The  seller  contended  that  the  quantity  for 
which  the  purchaser  was  liable  was  properly  measured 
by  the  volume  delivered  from  the  generating  plant  to 
the  substation  before  it  passed  through  the  trans¬ 
formers.  There  was,  in  short,  a  loss  of  current  at  the 
substation,  and  the  question  was  which  party,  under 
the  contract,  must  stand  the  loss.  The  court  held  that 
the  loss  must  fall  upon  the  seller. 


Wherland  Electric  Co.  v.  Burmeister,  122  Minn., 
110,  141  N.  W.,  1117. 


Term  of  Franchise 


HE  municipal  grant  of  a  franchise  for  the  distri¬ 


bution  of  electric  current  contained  a  reserva¬ 


tion  that,  whenever  the  City  Council  should  by  ordi¬ 
nance  declare  the  necessity  of  removing  the  poles  or 
wires  from  the  public  highways,  the  granter  should, 
within  sixty  days,  remove  the  same.  It  is  held  that 
this  reservation  did  not  indicate  that  the  franchise  was 
not  in  perpetuity,  but  only  for  the  corporate  life  of  the 
grantee. 


Old  Colony  Trust  Co.  v.  Omaha,  230  U.  S.,  100,  33 
Sup.  Ct.,  967. 


44 


Contributory  Negligence 

AN  EMPLOYEE  of  a  telephone  company,  whose 
duty  required  him  to  pass  between  defectively  in¬ 
sulated,  high-tension  electric  light  wires,  in  climbing  a 
telephone  pole,  and  who  was  killed  in  doing  so,  cannot, 
it  is  held,  be  charged  with  contributory  negligence  as 
a  matter  of  law  merely  because  he  failed  to  ask  that 
the  electric  current  be  turned  off,  which  would  have 
been  done  at  his  request.  If  the  danger  in  ascending 
the  pole  was  not  so  great  and  so  apparent  that  a  per¬ 
son  of  ordinary  prudence  would  not  encounter  it,  the 
deceased  would  not  of  necessity  be  negligent  in  under¬ 
taking  to  do  so,  and  whether  or  not  he  was  negligent 
was  a  question  for  the  jury. 

Rambo  v.  Empire  District  Electric  Co.,  90  Kan.,  390, 
133  Pac.,  553. 


Municipal  Street  Lighting 

THE  City  Council  of  Boston  appropriated  in  May, 
1911,  $300,000  for  the  purchase  of  gas  lamps 
and  other  apparatus  for  street  illumination.  The  Com¬ 
missioner  of  Public  Works  refused  to  make  the  pur¬ 
chases  authorized,  believing  that  a  large  amount  of 
money  might  be  saved  to  the  municipal  treasury  by 
making  a  contract  for  electric  lighting.  A  writ  of 
mandamus  was  sought  to  compel  him  to  make  the 
authorized  purchases.  It  was  held  that  the  appropria¬ 
tion  did  not  make  the  expenditure  mandatory  and  that 
mandamus  was  properly  refused. 

Smith  v.  Bourke,  Massachusetts  Supreme  Court, 
102  N.  E.,  362. 


Construction  and  Contract  Sale — “Electric  Outfit” 

THE  defendant  in  an  action  on  a  guaranty  sold 
to  the  plaintiff,  under  a  written  contract,  an 
engine,  pump,  tank,  “electric  outfit,”  certain  piping, 
and  a  grinder  and  boiler.  In  the  contract  it  was  pro¬ 
vided  that  “the  material  and  workmanship  of  the  above 

45 


is  guaranteed  to  be  good,  and  the  engine,  when  installed 
and  run  according  to  your  (the  seller’s)  instructions, 
shall  develop  the  horsepower  named  above.  This 
guaranty  is  good  for  six  months,  but  does  not  apply 
to  the  batteries.”  The  purchaser  afterwards  sued  the 
seller,  alleging  that  the  latter  had  sold  to  him  a  storage 
battery,  claiming  that  it  had  a  capacity  of  15  lights  for 
three  hours,  and  that  the  palintiff  paid  therefor;  that 
after  the  battery  was  put  to  work  it  was  found  that  it 
only  had  a  capacity  for  six  lights  for  three  hours.  The 
plaintiff  accordingly  brought  suit  for  damages,  on  the 
ground  that  the  property  was  not  of  the  character 
which  he  bought.  It  was  held  that  the  expression 
“electric  current,”  as  used  in  the  written  contract,  was 
ambiguous,  and  was  subject  to  explanation  by  parol. 
It  was  accordingly  error  to  reject  parol  testimony 
offered  for  the  purpose  of  showing  what  the  parties  to 
the  contract  included  in  that  expression. 

Fountain  v.  Hagan  Gas  Engine  &  Mfg.  Co.,  Georgia 
Supreme  Court,  78  S.  E.,  423. 


Open  Switch  Accident 

AN  EMPLOYEE  in  a  factory  was  found  dead 
therein  under  conditions  which  justified  the  in¬ 
ference  that  his  death  had  been  caused  by  an  electric 
current  coming  from  a  switch  which  he  was  required 
to  use  in  performing  the  service  in  which  he  was  em¬ 
ployed.  The  switch  was  an  open  one.  In  an  action  for 
his  death  it  appeared  that  his  thumb  and  index  finger 
were  burned,  and  that  the  blade  had  on  it  evidence  of 
flesh.  The  switch  was  one  in  general  use  and  had 
been  used  by  the  employee  for  several  months.  The 
danger  from  touching  the  blade  was  one  incident  to  the 
business  and  obvious,  and  the  employee  had  been  in¬ 
structed  how  to  operate  the  switch  and  not  to  touch 
any  part  but  the  handle  or  he  would  get  hurt.  It  was 
held  that  a  nonsuit  •  should  have  been  granted,  as  no 
negligence  on  the  defendant’s  part  appeared. 

Mehl  v.  New  York  Glucose  Co.,  New  Jersey  Court 
of  Errors  and  Appeals,  87  Atl.,  457. 

46 


Discontinuance  of  Service — Rights  of  Companies 

SUIT  was  brought  for  an  injunction  to  restrain  an 
electric  light  company  from  closing  down  or  dis¬ 
continuing  its  public  service  business  of  furnishing 
electricity  to  the  city  and  its  inhabitants.  It  was  held 
that  a  corporation  engaged  in  furnishing  electricity  to 
a  municipality  or  its  inhabitants  and  using  public 
streets  or  exercising  other  franchises  or  privileges  in 
doing  so,  is  thereby  performing  services  of  a  public 
nature,  within  the  meaning  of  the  constitution  and  laws 
of  the  State  of  Florida,  and  such  a  corporation  is  sub¬ 
ject  to  lawful  governmental  regulations  to  enforce  its 
duties  to  the  public  it  undertakes  to  serve.  Where  a 
public  utility  company  uses  franchises  and  assumes  the 
duty  imposed  by  law  to  render  a  reasonably  adequate 
service  during  the  times  its  rights  and  duties  may  law¬ 
fully  continue,  such  duty  may  be  enforced  by  appro¬ 
priate  legal  procedure,  where  no  adequate  excuse  for 
non-performance  is  appropriately  shown.  Allegations 
that  governmental  regulations  are  in  effect  confiscatory 
and  unduly  arbitrary  and  burdensome  to  a  public  serv¬ 
ice  company  do  not  justify  the  company  in  arbitrarily 
discontinuing  the  public  service,  for  the  company  has 
adequate  remedies  by  due  process  of  law  to  protect 
itself  against  the  enforcement  of  illegal  governmental 
regulations.  While  it  is  the  duty  of  a  public  service 
company  to  observe  all  lawful  municipal  regulations, 
the  company  has  a  right  to  a  reasonable  compensation 
for  the  public  service  it  renders  and  to  the  equal  pro¬ 
tection  of  the  laws  in  every  department  of  the  gov¬ 
ernment.  Illegal  municipal  regulations  are  not  bind¬ 
ing;  but  persons  and  corporations  cannot  be  permitted 
to  arbitrarily  assume  to  remedy  an  alleged  wrong  by 
refusing  to  render  a  public  service  voluntarily  under¬ 
taken. 

City  of  Gainesville  v.  Gainesville  Gas  &  Electric  Co., 
Florida  Supreme  Court,  62  So.,  919. 


Right  of  Condemnation 

THE  Georgia  statute  (Civ.  Code  1910,  Sections 
5240-5242)  extends  to  power  companies  gener¬ 
ating  electricity  for  public  use  the  right  to  condemn 
rights  of  way  or  other  easements  on  the  lands  of  others, 
in  order  to  run  lines  of  wires,  maintain  dams,  etc., 

47 


but  declares  that  such  power  of  condemnation  shall 
not  be  used  to  interfere  with  any  mill  or  factory 
actually  in  operation.  A  power  company  sought  to 
condemn  the  right  to  stretch  its  wires  over  a  quarry 
near  which  was  a  stone  crusher.  The  owner  con¬ 
tended  that  the  quarry  was  incidental  to  the  operation 
of  milling  the  stone,  and  sought  to  enjoin  the  condem¬ 
nation.  It  was  held  that  a  stone  crusher  is  not  a  mill 
or  factory,  and  that  the  protection  accorded  to  mills 
and  factories  does  not  extend  to  property  from  which 
the  crude  material  is  taken  for  supplying  such  mill  or 
factory. 

Beuchler  v.  Georgia  Ry.  &  Power  Co.,  Georgia  Su¬ 
preme  Court,  78  S.  E.,  121. 


Power  of  Municipality  to  Purchase  Public  Utility 

UNDER  its  home  rule  charter  it  is  held  that  the 
city  of  Virginia,  Minnesota,  has  power  to  ac¬ 
quire  a  water  and  light  plant  by  purchase,  to  have  the 
terms  of  purchase  fixed  by  agreement  without  resort¬ 
ing  to  the  method  of  ascertaining  value  prescribed  in 
the  chapter  relating  to  eminent  domain,  and  to  issue 
and  negotiate  bonds  to  obtain  funds  with  which  to  pay 
for  the  plant  without  a  prior  levy  of  revenue  sufficient 
to  pay  for  the  bonds  as  they  mature. 

Backus  v.  City  of  Virginia,  Minnesota  Supreme 
Court,  142  N.  W.,  1042. 


Inspection  Contract — Construction 

THE  plaintiff  brought  an  action  to  recover  an  in¬ 
spection  fee  which  he  had  paid  under  a  contract 
of  the  defendant  to  inspect  the  plaintiff's  electric  in¬ 
stallation  for  the  purpose  of  determining  correctness 
of  charges  for  current,  guaranteeing  a  saving  of  10 
per  cent,  or  to  refund  the  inspection  fee.  He  also 
agreed,  without  extra  charge,  to  obtain  the  cheapest 
contract  for  electric  current,  test  the  plaintiff’s  meters, 
and  examine  motors  whenever  necessary,  and  audit 
bills  when  presented,  and  obtain  rebates  on  all  over¬ 
charged  bills  to  date.  No  attempt  was  made  at  the 
trial  to  show  that  any  saving  whatever  in  the  plain¬ 
tiff’s  light  bills  had  been  accomplished  by  the  defend- 

48 


ant,  to  rebut  the  plaintiff’s  testimony  that  no  saving 
was  made.  The  defendant  attempted  to  prove  an 
excuse  for  his  failure  to  reduce  the  bills,  in  that  he 
made  certain  recommendations  to  the  plaintiff  to 
change  his  lamps  from  carbon  burners  to  tungsten  or 
tantalum,  which,  he  said,  would  have  caused  a  reduc¬ 
tion  in  the  bills  had  the  plaintiff  followed  his  recom¬ 
mendations.  It  was  held  that  the  reduction  guaran¬ 
teed  was  to  arise  from  what  the  defendant  agreed  to 
do,  and  that  the  plaintiff  was  entitled  to  recover  the 
inspection  fee  paid. 

Independent  Owners’  Garage  Co.  v.  Hirsch,  New 
York  Appellate  Division,  142  N.  Y.  Supp.,  346. 


Exposed  Electric  Light  Switch — Liability  of 

Landlord 

ALIGHT  COMPANY  has  been  sued  and  held 
liable  for  injuries  caused  by  contact  with  an 
exposed  electric  light  switch  in  a  house  which 
it  had  rented  to  the  plaintiff,  not  in  its  capac¬ 
ity  as  a  public  utility  supplying  electric  light, 
but,  in  tort,  for  a  negligent  breach  of  duty, 
which  in  any  case,  the  court  said,  without  re¬ 
gard  to  the  terms  of  the  contract  of  lease,  the  land¬ 
lord  owes  the  tenant.  Where  there  are  obscure  defects 
dangerous  to  the  life,  health,  or  property  of  the  tenant, 
existing  and  known  to  the  landlord  when  the  lease  is 
made,  but  unknown  to  and  unappreciated  by  the  ten¬ 
ant,  and  which  a  reasonable,  careful  examination  on 
his  part  would  not  discover,  it  is  the  duty  of  a  landlord 
to  disclose  them  that  the  tenant  may  either  decline  the 
premises  or  guard  against  the  defects.  The  failure  to 
disclose  such  defects  or  dangers  is  culpable  negligence. 

Howard  v.  Washington  Water  Power  Co.,  Washing¬ 
ton  Supreme  Court,  134  Pac.,  927. 


Lineman’s  Duty  to  Inspect — Safe  Place  to  V/ork 

ACTION  was  brought  for  the  death  of  a  servant 
employed  to  reset  electric  poles  who  was  killed 
by  an  electric  shock  while  climbing  among  live  wires 
for  the  purpose  of  attaching  a  pulley  to  the  old  poles 

49 


used  in  hoisting  the  new  ones.  It  was  held  that  a 
servant  so  employed  assumes  the  risk  of  all  ordinary 
dangers  incident  to  so  hazardous  an  employment,  but 
not  the  risk  of  unknown  and  abnormal  dangers  due  to 
the  master’s  negligence.  It  is  negligence  for  which  the 
master  is  liable  to  a  servant  so  employed,  who  is  in¬ 
jured  or  killed  thereby,  to  permit  a  joint  or  connection 
to  be  made  in  a  highly  charged  electric  wire  and  remain 
uninsulated,  and  so  close  to  one  of  the  metal  braces 
supporting  a  cross-arm  on  the  pole  as  to  charge  it.  The 
rule  regarding  a  safe  place  to  work  and  safe  appliances 
was  held  to  apply,  because  the  old  pole  was  a  means 
or  appliance  which  the  deceased  used  in  the  perform¬ 
ance  of  his  work,  with  the  master’s  acquiescence.  It 
was  therefore  the  master’s  duty  to  see  that  the  wires 
on  the  pole  were  in  a  reasonably  safe  condition.  The 
deceased  was  bound  to  test  the  strength  of  the  pole, 
the  fact  of  a  new  one  being  put  in  its  place  being 
enough  to  put  him  on  guard  as  to  any  defect,  but  he 
was  not  chargeable  with  the  duty  to  use  extraordinary 
care  to  avoid  danger  from  imperfect  wiring.  Whether 
the  deceased  was  guilty  of  contributory  negligence  in 
failing  to  see  that  the  untaped  joint  in  the  primary 
wire  rested  against  the  metal  brace  was  held  to  be  for 
the  jury. 

Perry  v.  Ohio  Valley  Electric  Ry.  Co.,  West  Vir¬ 
ginia  Supreme  Court,  78  S.  E.,  692. 


Falling  Globe — Cause  of  Accident — Burden  of  Proof 

CTION  was  brought  against  a  light  company  for 


2~V  injuries  received  by  the  plaintiff  while  making 
fast  a  boat  at  a  ferry  through  being  struck  by  a  frag¬ 
ment  of  a  glass  globe  that  fell  from  the  defendant’s 
lamp  that  hung  outside  of  the  pathway  on  the  ferry 
bridge.  The  top  of  the  globe  was  fastened  by  three 
screws  into  a  ring  thrust  into  a  collar,  where  three 
bolts  engaged  three  slots  in  it,  and  then  turned  so  that 
its  rim  rested  on  the  bolts.  A  chain  connected  the 
globe  to  the  lamp  for  the  sole  purpose  of  holding  the 
globe  when  detached  from  its  fitting  in  the  lamp. 
After  the  accident,  the  defendant’s  attorney  found  the 
ring  detached  from  the  globe,  on  a  beam  which  was 
beneath  the  lamp.  The  doctrine  of  res  ipsa  loquitur 


50 


was  invoked  by  the  plaintiff.  It  was  held  that  the 
cause  of  the  fall  of  the  lamp  was  an  important,  but  not 
indispensable,  ascertainment.  So  far  as  it  entered  into 
the  matter,  the  burden  of  showing  it  was  on  the  per¬ 
son  having  the  thing  in  its  control.  If  it  were  known, 
the  defendant’s  care  in  respect  to  the  cause  could  be 
considered.  But  if  the  cause  were  not  discovered,  yet 
if  the  defendant  exercised  reasonable  care  in  regard  to 
the  things  that  in  reasonable  expectation  would  keep 
the  lamp  intact,  it  was  faultless.  The  burden  of  ex¬ 
planation  was  thrown  on  the  defendant,  but  to  explain 
that  it  was  not  negligent,  rather  than  the  cause  of  the 
accident.  When  the  rule  res  ipsa  loquitur  is  applic¬ 
able,  the  facts  are  deemed  to  “afford  sufficient  evidence 
that  the  accident  arose  from  want  of  care  on  its  part,” 
and  the  defendant  must  rebut  this  inference.  But  it 
was  not  necessary  to  show  the  cause  of  the  accident  in 
order  to  do  this.  It  would  be  helpful  if  the  defendant 
could  make  the  specific  cause  known,  and  then  show 
its  care  respecting  it.  But  if  it  negatived  the  presump¬ 
tion  of  negligence,  by  showing  its  care  as  to  all  prob¬ 
able  cause,  that  would  be  sufficient.  Judgment  for  the 
plaititiff  was  reversed  and  a  new  trial  granted. 

Sweeney  v.  Edison  Electric  Illuminating  Co.,  158 
N.  Y.  App.  Div.,  449,  143  N.  Y.  Supp.,  636. 


Generation  of  Power — “Public” 

THE  New  York  Appellate  Division  has  decided 
that  the  generation  of  electricity  from  water 
power  by  the  State  to  be  furnished  to  the  public  upon 
equal  terms  is  a  public  use  for  which  private  property 
may  be  condemned.  This  question,  the  court  said,  does 
not  appear  ever  to  have  been  decided  in  the  State  of 
New  York  before,  but  in  some  jurisdictions  it  has  been 
held  that  such  a  generation  of  electric  power  is  a  public 
use  (Walker  v.  Shasta  Power  Co.,  160  Fed.,  856,  859), 
and  some  authorities  seem  to  hold  that  the  develop¬ 
ment  of  water  power  even  for  private  consumption  is 
such  a  public  purpose  as  to  justify  the  exercise  of  the 
right  of  eminent  domain  (Hazen  v.  Essex  Co.,  12 
Cush.  Mass.,  477).  Without  going  to  the  extent  of  the 
latter  case,  which  the  court  thought  might  be  ques¬ 
tioned  on  principle,  it  saw  no  reason  why  the  fur¬ 
nishing  by  the  State  of  electric  power  generated  by  the 

51 


State  waters  to  the  public  upon  equal  terms  would  not 
be  properly  a  public  use,  especially  as  the  case  seems  to 
hold  that  this  same  business,  if  engaged  in  by  a  private 
corporation,  would  be  a  public  one.  Available  water 
power  sites  in  any  State  must  always  be  limited  in 
number,  and  will  probably  increase  in  value  with  the 
progressive  exhaustion  of  nearby  coal  deposits.  The 
navigable  waters  of  the  State  of  New  York  are  pri¬ 
marily  owned  by  the  public,  and  if  the  State  in  further¬ 
ance  of  a  policy  of  conservation  decides  to  retain  or 
regain  all  its  rights  therein,  and  ultimately  to  use  such 
waters  for  power  generation,  such  a  policy  seemed  to 
the  court  clearly  public  in  its  nature,  so  that  the  right 
of  eminent  domain  may  be  invoked. 

Long  Sault  Development  Co.  v.  Kennedy,  158  N.  Y. 
App.  Div.,  398,  143  N.  Y.  Supp.,  454. 


Right  of  Condemnation — Private  Purpose 

A  TRACTION  company  was  authorized  to  gener¬ 
ate  electricity  for  public  and  private  use,  and 
was  given  the  power  of  eminent  domain  by  its  char¬ 
ter  and  by  general  statute.  It  was  held  that  it  was  no 
answer  to  its  application  to  condemn  land  that  it  in¬ 
tended  to  use  it  for  private,  as  distinguished  from  the 
public,  purpose.  If,  after  acquiring  the  land  for  pub¬ 
lic  use,  it  devoted  it  to  a  private  purpose,  such  use 
could  be  terminated  by  quo  warranto. 

Wadsworth  Land  Co.  v.  Piedmont  Traction  Co., 
North  Carolina  Supreme  Court,  78  S.  E.,  297. 


Escape  of  Current  Into  House — Care  Required 

A  PERSON  was  killed  while  turning  off  a  switch 
in  a  house  through  a  high  voltage  current  escap¬ 
ing  from  a  primary  to  a  secondary  wire,  the  trans¬ 
former  having  got  out  of  order.  The  plaintiff  offered 
to  show  by  a  qualified  witness  that  it  was  customary 
for  illuminating  companies  to  use  a  device,  not  used 
by  the  defendant,  which  would  prevent  high  voltage 

52 


from  flowing  from  primary  to  secondary  wires  and 
thence  into  buildings,  which  evidence  was  excluded. 
It  was  held  that  this  evidence  should  have  been  ad¬ 
mitted.  It  was  held  that  the  case  should  have  been 
submitted  to  the  jury  on  the  question  of  the  defend¬ 
ant's  negligence,  for  the  reason  that,  where  a  corpora¬ 
tion,  for  its  profit,  assumes  to  control  the  distribution 
of  a  substance  as  dangerous  to  human  life  as  electric¬ 
ity  when  the  current  is  maintained  at  a  high  voltage, 
it  is  its  duty  to  exercise  at  least  reasonable  care  to 
prevent  its  escape  in  a  death-dealing  manner.  The 
burden  of  proving  that  the  deceased  exercised  due  care 
was  upon  the  plaintiff.  As  there  were  no  eye  wit¬ 
nesses  to  the  occurrence,  it  need  not  be  proved  by  testi¬ 
mony  addressed  directly  to  its  support,  but  might  be 
shown  by  evidence  of  circumstances  excluding  fault. 
The  switchboard  and  its  appliances  were  ordinarily 
harmless.  There  was  nothing  to  manifest  danger  at 
the  time  of  the  injury,  and  the  deceased  had  no  reason 
to  suppose  that  the  switchboard  or  its  parts  had  sud¬ 
denly  become  deadly.  The  deceased  was  where  he  had 
a  right  to  be.  The  question  of  his  contributory  neg¬ 
ligence  was  for  the  jury.  It  was  held  that  the  force 
causing  the  death  of  the  deceased,  lethal  in  its  nature 
unless  properly  contained,  being  in  the  control  of  the 
defendant,  and  the  casualty  being  such  as  in  the  ordi¬ 
nary  course  of  the  business  does  not  happen  if  reason¬ 
able  care  is  used,  proof  of  these  circumstances,  regard¬ 
less  of  direct  proof  of  defective  appliances,  afforded, 
in  the  absence  of  explanation,  sufficient  evidence  that 
the  accident  occurred  from  want  of  care  on  the  defend¬ 
ant's  part.  Judgment  for  the  defendant  was  reversed, 
and  a  new  trial  granted. 

Webster  v.  Richmond  Light  &  R.  Co.,  158  N.  Y. 
App.  Div.,  210,  143  N.  Y.  Supp.,  57. 


Uninsulated  Wires — Liability  for  Injuries  to  Tele¬ 
phone  Lineman 

AN  EMPLOYEE  of  a  telephone  company,  whose 
wires  were  lawfully  stretched  above  those  of  an 
electric  light  company,  found  it  necessary  to  climb  one 
of  his  employer’s  poles  between  the  wires  of  the  light 
company.  In  so  doing  he  received  a  shock  from  one 

53 


of  the  light  company’s  wires,  and,  falling  to  the  ground, 
was  killed.  In  an  action  for  his  death,  the  plaintiff’s 
evidence  tended  to  show  that  the  light  company  had 
had,  for  a  long  time,  constructive  notice  of  the  unin¬ 
sulated  condition  of  the  wire  at  this  part.  The  de¬ 
ceased  was  lawfully  about  his  business  when  he  was 
climbing  up  the  pole  for  the  purpose  of  repairing  his 
employer’s  line  of  wires,  and  it  was  held  that  the  light 
company,  which  had  never  questioned  the  right  of  the 
telephone  company  to  maintain  its  line  of  poles  and 
wires  as  they  had  been  set  12  years  before,  was  bound 
to  know  that,  from  time  to  time,  its  employees  would 
do  just  what  the  deceased  did,  and  bound  by  such 
knowledge,  the  duty  resting  upon  the  light  company 
was  to  use  the  very  highest  degree  of  care  practicable 
to  avoid  injury  to  any  one  who  might  be  lawfully  in 
proximity  to  its  wires  and  liable  to  get  accidentally  or 
otherwise  in  contact  with  them ;  and,  if  the  light  com¬ 
pany  was  negligent  in  this  respect,  it  was  no  defense 
that  the  company  which  had  employed  the  deceased 
had  not  taken  proper  care  to  protect  its  employees  from 
the  negligence  of  the  other  company.  Whether  the 
light  company  was  negligent  and  also  whether  the  de¬ 
ceased  was  guilty  of  contributory  negligence,  were 
questions  for  the  jury.  Judgment  for  the  plaintiff  was 
affirmed. 

Hippie  v.  Edison  Electric  Illuminating  Co.,  Pennsyl¬ 
vania  Supreme  Court,  87  Atl.,  297. 


Injuries  to  Consumer  by  Overcharged  Wires 

A  PATRON  of  an  electric  company  was  injured 
by  touching  insulated  wires,  which  had  been 
overcharged,  while  adjusting  a  device  of  his  own  for 
starting  and  stopping  an  electric  motor,  and  sued  the 
company.  The  device  was  not  shown  to  increase  the 
danger,  therefore  he  was  held  not  guilty  of  contribu¬ 
tory  negligence,  since  he  had  a  right  to  assume  that  it 
was  safe,  as  it  ordinarily  was,  to  touch  such  wires,  and 
the  overcharging  was  the  proximate  cause.  Although 
an  electric  company  is  not  an  insurer  of  the  safety 
of  persons  who  must  come  into  contact  with  the  appli¬ 
ances  through  which  the  electricity  is  conveyed,  the 
company  must  nevertheless  use  a  degree  of  care  com- 

54 


mensurate  with  the  dangers  incurred.  The  patrons  of 
the  company  have  the  right  to  assume  that  everything 
that  is  open  to  touch  concerning  such  appliances  can 
be  touched  with  safety,  and  that  the  company  has  done 
all  that  human  care,  vigilance,  and  foresight  can  rea¬ 
sonably  do,  consistent  with  the  practical  operation  of 
its  plant,  to  render  such  appliances  safe.  Whether  the 
company  had  done  so  was  a  question  for  the  jury. 

White  v.  Reservation  Electric  Co.,  Washington  Su¬ 
preme  Court,  134  Pac.,  807. 


Contributory  Negligence 

A  PERSON  of  19  years  of  age,  who  knew  that 
electric  light  wires  were  dangerous,  saw  a  wire 
fall  during  a  severe  storm  and  burn  the  grass.  He  was 
warned  that  it  was  dangerous,  but  he  stopped  and  took 
hold  of  it  with  his  hands  and  was  almost  instantly 
killed.  In  an  action  for  his  death  it  was  held  that  he 
was  guilty  of  contributory  negligence,  and  that  the 
light  company  was  not  guilty  of  negligence. 

Bowman  v.  Farmersville  Mill  &  Light  Co.,  Texas 
Civil  Appeals,  158  S.  W.,  200. 


Right  to  Construct  Dam 

A  CORPORATION,  authorized  by  law  so  to  do, 
erected  a  dam  across  a  stream,  and  constructed 
in  connection  therewith  a  plant  for  generating  elec¬ 
tricity  by  water  power,  to  be  used  for  the  purpose  of 
lighting  towns  or  cities,  supplying  motive  power  to 
street  car  lines,  and  furnishing  light  or  power  to  the 
public.  It  was  held  that  an  ordinary  had  no  jurisdic¬ 
tion  to  proceed  summarily  under  Georgia  Civil  Code 
1910,  Section  5333,  for  the  purpose  of  abating  the  dam 
and  plant  as  a  public  nuisance. 

Central  Georgia  Power  Co.  v.  Ham,  139  Ga.,  569, 
77  S.  E.,  396. 


55 


Wrongfully  Cutting  Off  Current 


ALIGHT  company’s  cut-out  inspector  called  at  a 
consumer’s  apartment,  and  obtained  entrance 
under  the  pretense  of  wishing  to  read  the  electric 
meter.  Instead  of  doing  so,  however,  he  turned  off 
the  current,  explaining  that  the  consumer  did  not  pay 
his  bills.  There  was,  in  fact,  no  unpaid  bill  at  the  time. 
Under  the  contract  the  company  had  the  right  to  enter 
the  consumer’s  apartment  to  read  or  inspect  the  meter 
at  all  reasonable  times ;  under  the  statute  it  had  the 
right  to  enter  and  cut  off  the  current  if  bills  were  over¬ 
due  and  payment  was  refused  after  a  demand.  The 
time  of  the  entry,  4.30  on  a  week-day  afternoon,  was 
held  to  be  a  reasonable  time  to  read  or  inspect  the 
meter  or  to  cut  off  the  current  because  of  an  unpaid 
bill ;  but  as  there  was  no  unpaid  bill  at  the  time,  the 
entry  under  pretense  of  inspection  and  the  wrongful 
turning  off  of  the  current  without  the  consumer’s  con¬ 
sent  were  held  to  constitute  a  trespass  for  which  the 
company  would  be  liable.  It  was  immaterial,  except  as 
to  the  amount  of  damage,  whether  such  a  tortious  entry 
was  obtained  by  deceit,  stealth,  threats,  force,  or  with¬ 
out  actual  consent ;  in  any  case  it  was  a  trespass. 

Olin  v.  United  Electric  Light  &  Power  Co.,  62  Misc. 
(N.  Y.),  143  N.  Y.  Supp.,  1012. 


Defective  Insulation 

IN  a  workman’s  action  against  an  electric  com¬ 
pany  for  injuries  from  coming  in  contact  with  an 
electric  wire,  while  standing  on  a  ladder  painting  a 
municipal  building,  it  appeared  from  the  evidence  that 
the  insulating  material  used  was  such  as  is  ordinarily 
used  upon  the  wires  when  hanging  in  the  air,  and  out 
of  ordinary  reach.  It  was  held  that  it  did  not  follow 
that  insulation  of  this  character  is  reasonably  safe  for 
use  upon  wires  at  points  where  they  enter  buildings, 
or  where  it  may  reasonably  be  expected  that  persons 
in  the  discharge  of  duty  may  accidentally  come  in  con¬ 
tact  with  them.  Insulation  that  may  be  sufficient  at 
one  place  may  not  constitute  proper  protection  against 
danger  from  the  wires  at  another.  Evidence  to  show 

56 


that  the  wires  were  not  properly  insulated  at  the  spot 
where  the  accident  occurred  was  held  admissible,  and 
a  judgment  of  nonsuit  was  reversed  on  account  of  its 
exclusion. 

Yeager  v.  Edison  Electric  Co.,  Pennsylvania  Su¬ 
preme  Court,  88  Atl.,  872. 


Risks  Assumed — Safe  Place  to  Work 

ACTION  was  brought  for  injuries  to  a  person  in 
charge  of  a  car  used  as  a  temporary  substation, 
for  injuries  caused  by  shock  from  wires  running  along 
the  ceiling.  The  trial  court  instructed  that  the  defend¬ 
ant  was  required  to  furnish  its  employees  with  a  suit¬ 
able  and  ordinarily  safe  place  in  which  to  work,  and 
where  an  employee,  relying  upon  his  employer  so  do¬ 
ing,  receives  injuries  because  of  neglect  to  disclose  to 
him  hidden  defects  which  the  employer  should  have 
known  by  the  exercise  of  reasonable  prudence,  the 
employer  is  liable  for  such  injuries;  that  the  employer 
undertakes  not  to  expose  employees  to  dangers  which 
are  not  obvious,  or  of  which  the  latter  have  no  knowl¬ 
edge  or  inadequate  comprehension,  and  which  are  not 
reasonably  incident  to  the  ordinary  risk  of  the  serv¬ 
ices  ;  and  even  if  defendant  failed  to  perform  its  duties 
thus  defined  toward  plaintiff,  resulting  in  his  injury  as 
the  result  of  the  hazard  which  was  not  open  and  ap¬ 
parent  to  plaintiff,  and  unknown  and  without  fault  on 
his  part,  defendant  would  be  liable.  It  was  held  that 
the  instruction  was  correct,  and  was  not  objectionable 
on  the  ground  that  it  omitted  the  qualification  that  the 
servant  assumes  those  incidental  dangers  of  which  he 
knew,  or  could  have  known,  by  the  exercise  of  ordi¬ 
nary  care. 

The  court  also  instructed  that  if  the  jury  found 
that  the  defendant  in  equipping  could  have  placed  its 
high-tension  wires  through  the  other  end  of  the  car 
from  which  it  did  place  them,  and  thereby  brought 
down  its  wires  at  said  end  to  the  transformers,  and 
avoided  having  the  wires  placed  the  length  of  the  car 
overhead,  and  if  the  same  could  have  been  done  with¬ 
out  any  great  additional  expense  or  interference  with 
the  business,  and  thereby  the  rotary  at  the  opposite 
end  of  the  car  could  have  been  safely  cleaned  with- 

57 


out  exposing  plaintiff  to  the  hazard  of  the  wires,  then 
it  was  the  defendant’s  duty  to  so  place  the  wires  at 
said  end  of  the  car  so  that  the  danger  to  plaintiff,  if 
any,  while  working  in  the  car,  could  have  been  avoided. 
It  was  held  that  the  instruction  was  on  the  weight  of 
evidence,  for  in  effect,  assuming  that  the  way  in  which 
the  wires  were  brought  into  the  car  and  run  along  the 
ceiling  was  dangerous;  and  judgment  for  the  plaintiff 
was  reversed  and  a  new  trial  ordered. 

Indiana  Union  Traction  Co.  v.  Sullivan,  Indiana 
Appellate  Court,  101  N.  E.,  401. 


Duty  to  Inspect  Wires 

A  TELEPHONE  guy  wire  which  extended  be¬ 
tween  two  wires  of  an  electric  company  became 
loose,  so  that  in  stormy  weather  it  was  blown  against 
one  of  the  electric  wires.  In  wet  weather  a  circuit 
would  be  completed.  During  a  storm  the  electric  wire 
was  burned  through  and  fell  into  the  street.  A  pedes¬ 
trian  whose  hand  came  in  contact  was  killed.  In  an 
action  for  his  death,  it  was  held  that  the  only  ground 
on  which  the  defendant  could  be  held  liable  was  that 
the  accident  resulted  from  its  failure  properly  to  in¬ 
spect  its  system  of  wires,  and  that  question  was  for 
the  jury,  which  gave  a  verdict  for  the  plaintiff. 

Dugan  v.  Erie  County  Electric  Co.,  Pennsylvania 
Supreme  Court,  88  Atl.,  437. 


Use  of  Light  Plant  for  Other  Purposes — Interfer¬ 
ence  With  Private  Plants 

THE  owners  of  a  franchise  to  build  and  main¬ 
tain  an  electric  light  plant  in  a  city  sought  to 
enjoin  the  city  from  constructing  and  maintaining  an 
electric  light  system  there.  The  franchise  of  the  plain¬ 
tiffs  was  not  an  exclusive  one.  Under  the  Nebraska 
statute  the  city  had  the  power  to  construct  and  operate 

58 


a  municipal  electric  light  system  for  the  purpose  of 
furnishing  light  to  the  city  and  the  inhabitants  thereof. 
It  was  not  authorized  to  build  a  power  plant,  nor  a 
combined  light,  water,  and  heating  plant.  But  it  was 
held  that,  when  a  municipal  lighting  plant  was  built, 
the  city  would  probably  violate  any  law  if  it  sold  to 
the  citizens  power  which  is  necessarily  produced  in 
the  act  of  furnishing  electricity  for  lights,  and  so  the 
fact  that  furnishing  power  might  be  incidental  to  an 
operation  of  its  light  plant,  or  the  fact  that  it  intended 
to  furnish  heat  from  the  light  plant,  would  not  neces¬ 
sarily  be  a  violation  of  the  law.  And  if  the  city,  from 
the  engines  of  its  light  plant,  furnished  the  power 
to  pump  the  water  for  the  use  of  the  city  and  its  in¬ 
habitants  as  an  incidental  use  of  the  light  plant,  the 
court  considered  that  would  not  be  a  violation  of  the 
law.  In  constructing  such  a  system,  due  regard  must 
be  given  to  the  rights  of  the  owners  of  the  existing  sys¬ 
tem.  The  municipal  system  should  be  so  constructed 
as  not  unnecessarily  to  interfere  with  the  property 
rights  of  the  owners  of  the  existing  plant,  and  in  case 
of  necessarily  interfering  the  city  would  be  liable  for 
the  injury  caused.  The  city  having  denied  that  it 
would  interfere  with  the  property  rights  of  the  owners 
of  the  existing  system,  and  introduced  proof  to  sustain 
that  allegation,  it  was  held  that  the  plaintiffs  were  not 
entitled  to  enjoin  the  construction  before  there  should 
be  actual  or  threatened  interference. 

Bell  v.  David  City,  Nebraska  Supreme  Court,  142 
N.  W.,  523. 


Duty  to  Guard  Crossing  Wires — Assumed  Risk 

THE  Mississippi  Supreme  Court  holds  that  an 
electric  light  company  and  a  telephone  company 
are  both  negligent  in  permitting  their  crossing  wires 
to  remain  unprotected  by  a  guard  wire  or  other  device, 
so  far  as  third  parties  are  concerned.  In  an  action  for 
the  death  of  a  telephone  “trouble  finder”  caused  by 
contact  with  a  heavily  charged  telephone  wire  which 
had  fallen  across  the  light  wires,  and  which  he  had 
been  sent  to  remove,  it  was  held  that  the  duty  of 
guarding  its  wires  rested  upon  the  city  owning  the  light 

59 


plant,  for  the  reason  that  corporations  and  persons 
engaged  in  any  business  requiring  the  use  of  wires 
highly  charged  with  electricity  are  required  to  use  the 
highest  degree  of  care  in  order  to  confine  this  deadly 
current  to  its  wires,  and  thus  prevent  its  escape  to  the 
danger  of  life  and  property.  The  duty  rested  upon  the 
telephone  company  for  the  reason  that  it  was  bound  to 
know  that  in  the  event  its  wires  should  fall  they  would 
necessarily  come  in  contact  with  the  electric  light  wires, 
and,  as  a  result  thereof,  become  highly  charged  with 
electricity,  and  dangerous  to  life  and  property;  and, 
therefore,  if  it  chose  to  string  its  wires  so  that  this 
condition  could  arise,  it  was  bound  to  exercise  the 
highest  degree  of  care  in  order  to  prevent  its  doing 
so.  But  the  telephone  company  would  not  be  liable 
for  the  death  of  its  own  lineman  killed  in  repairing 
the  wires,  as  this  was  a  risk  assumed  by  him  an  an 
incident  to  his  employment,  unless,  knowing  his  inex¬ 
perience,  it  failed  properly  to  warn  and  instruct  him 
relative  to  his  work  and  the  dangers  incident  thereto. 
But  the  lineman  did  not  assume  the  risk  as  to  the  city, 
and  his  administrators  were  held  entitled  to  recover 
from  the  latter. 

Cumberland  Tel.  &  Tel.  Co.  v.  Cosnahan,  Mississippi 
Supreme  Court,  62  So.,  824. 


Installation  of  Transformers — Expenses — Discrim¬ 
ination 

A  CITY  which  undertakes  to  furnish  electric  light 
and  power  to  the  public  is  subject  to  the  same 
duties  and  obligations,  and  possesses  the  same  rights 
and  privileges,  as  private  persons  or  corporations  do¬ 
ing  the  same  class  of  service.  Such  a  city  is  obliged 
to  furnish  power  to  all  applicants  who  pay  its  proper 
and  reasonable  charges  therefor.  It  cannot  dictate  to 
consumers  what  selection  of  appliances  they  shall 
make,  as  between  those  in  common  practical  use.  A 
consumer  found  it  necessary  or  advantageous  in  his 
business  to  use  three-phase  motors.  Such  motors  are 
in  common  practical  use.  The  city  could  not  furnish 
current  for  three-phase  motors  without  the  use  of 
transformers  costing  about  $80.  With  such  trans- 

60 


formers  it  could  do  so.  It  refused  to  furnish  power 
at  all,  unless  the  consumer  would  discard  his  three- 
phase  motors  and  install  single-phase  motors,  to  which 
the  city  system  was  adapted.  In  an  action  of  manda¬ 
mus  to  compel  the  city  to  install  the  service  applied  for, 
it  was  held  that  the  court  should  require  it  to  do  so. 
It  did  not  follow  that  the  city  must  bear  the  burden 
of  the  expense  of  such  transformers.  If  a  particular 
consumer  desired  service  which  the  city  could  supply 
only  by  the  installation  of  transformers,  at  a  substan¬ 
tial  expense  not  entailed  in  furnishing  power  to  others, 
then  the  consumer  occasioning  such  special  expense 
should  bear  the  burden  thereof.  The  one  essential  is 
that,  whatever  the  charge,  it  must  apply  to  all  persons 
similarly  situated,  to  the  end  that  there  shall  be  no  dis¬ 
crimination.  As  to  the  method  of  adjustment  of  such 
expense,  whether  by  an  installation  charge,  a  rental, 
or  an  increased  rate,  the  city  has  a  large  discretion. 
Its  regulation,  if  fair  and  reasonable,  and  free  from 
discrimination,  is  binding  on  the  applicant  for  service. 

State  v.  City  of  Waseca,  Minnesota  Supreme  Court, 
142  N.  W.,  319. 


Liability  of  Municipal  Corporations  Owning  Light¬ 
ing  Plants 

A  MUNICIPAL  corporation  that  engages,  under 
legislative  authority,  in  the  business  of  furnish¬ 
ing  electric  lighting  to  private  consumers  for  profit  is 
liable  for  the  negligence  of  the  agents  employed  by  it 
to  string  the  wires  designed  for  such  commercial  pur¬ 
poses. 

Karpinski  v.  South  River  (N.  J.),  88  Atl.,  1073. 


Wires  on  Highways — Care  Required 

ACTION  was  brought  to  recover  damages  for  per¬ 
sonal  injuries  received  by  the  plaintiff  by  reason 
of  a  hay  stacker  or  derrick,  which  he  was  moving 
along  a  public  highway  in  Idaho,  coming  in  contact 
with  the  defendant  company's  power  transmission 
wires.  The  plaintiff’s  evidence  tended  to  show  that 

61 


the  highest  paint  of  the  stacker  was  about  27  J4  feet 
from  the  ground ;  that  haystackers  similar  in  construc¬ 
tion  and  height  were  in  general  use  in  the  neighbor¬ 
hood,  and  had  been  since  before  the  company’s  line 
was  built;  that  they  were  frequently  moved  along  the 
highways ;  that  a  bridge  which  the  plaintiff  was  ap¬ 
proaching  was  higher  than  the  roadway  on  either  side, 
and  was  built  before  the  defendant’s  line  was  estab¬ 
lished;  that  to  pass  over  the  bridge  with  a  structure 
like  the  plaintiff’s,  it  was  necessary  to  pass  under  the 
company’s  wires  at  the  place  where  the  injury  oc¬ 
curred,  that  the  lowest  wires  of  the  defendant’s  line 
at  that  point  was  about  27  feet  3  inches  from  the 
ground,  and  was  lower  than  at  any  other  point  along 
the  highway;  that  by  the  standard  of  construction  of 
such  a  power  line  in  that  country,  recognized  by  engi¬ 
neers  and  others  in  charge  of  construction,  the  lowest 
wire  should  be  from  30  to  33  feet  above  the  ground; 
that  the  defendant’s  wires  were  not  insulated,  and 
were  at  the  time  carrying  a  powerful  current,  danger¬ 
ous  to  the  life  of  any  one  who  might  come  in  contact 
with  it.  It  was  held  that  such  evidence  tended  to  show 
that  the  defendant  had  not  performed  its  legal  duty  to 
use  the  highest  degree  of  care  practicable  to  avoid  in¬ 
jury  to  every  one  who  might  be  lawfully  in  proximity 
to  the  wires,  and  that  the  question  should  have  been 
submitted  to  the  jury.  Judgment  for  the  defendant 
was  reversed,  and  a  new  trial  granted. 

Shank  v.  Great  Shoshone  &  Twin  Falls  Water  Power 
Co,  C.  C.  A,  205  Fed,  833. 


Master  and  Servant — Existence  of  Relationship 

A  CONTRACTING  company  was  engaged  in  in¬ 
stalling  in  the  power  house  of  an  electric  com¬ 
pany  an  engine  for  which  the  latter  had  contracted, 
and  which  the  contracting  company  was  to  install  and 
start  “and  place  in  good  operative  condition.”  Its 
superintendent  in  charge  of  the  work  requested  and 
obtained  the  assistance  of  one  of  the  electric  com¬ 
pany’s  employees  to  tighten  some  bolts.  In  doing  this 
work  the  head  of  a  hammer  flew  off  and  hit  this  assist¬ 
ant,  causing  injuries  for  which  he  sued  the  contract¬ 
ing  company.  It  was  held  that  the  person  in  charge  of 

62 


the  work  for  the  time  had  implied  authority  to  ask 
such  temporary  assistance  as  he  might  require  from 
an  employee  of  the  electric  company.  Such  employee 
did  not,  by  rendering  such  assistance,  as  a  matter  of 
law,  become  the  contracting  company’s  servant,  or  lose 
the  right  to  be  protected  from  the  carelessness  of  its 
servants.  In  order  to  become  the  defendant’s  servant, 
it  was  necessary  that  the  plaintiff  should  expressly 
assent  to  a  change  of  employers,  or  should  have  had 
such  notice  and  a  knowledge  of  the  circumstances  that 
his  assent  would  be  presumed. 

Sprague  v.  General  Electric  Co.,  213  Mass.,  375,  100 
N.  E.,  628. 


Res  Ipsa  Loquitur  Rule 

ACTION  was  brought  against  an  electric  lighting 
company  to  recover  damages  for  the  breaking 
of  a  plate  glass  window  by  reason  of  a  metal  trans¬ 
forming  box  falling  on  the  window  from  the  top  of 
a  pole  on-  the  edge  of  a  sidewalk.  The  evidence 
showed  that  at  the  time  of  the  accident  the  defend¬ 
ant’s  employees  were  in  the  act  of  removing  the  box 
from  the  pole  to  the  ground,  but  did  not  show  how 
the  box  happened  to  fall.  The  jury  found  for  the 
plaintiff,  but  the  trial  court  entered  judgment  non 
obstante  veredicto.  On  appeal  this  was  reversed,  it  be¬ 
ing  held  that  the  rule  of  res  ipsa  loquitur  applied. 

Hauer  v.  Erie  County  Electric  Co.,  51  Pennsylvania 
Superior  Court,  613. 


Eminent  Domain — Public  Use — “Manufacturing” 

Corporation 

CODE  IOWA,  1897,  Section  1990,  authorizes  any 
corporation  organized  for  the  purpose  of  utiliz¬ 
ing  any  water  power  within  the  State  or  of  any  stream 
lying  upon  the  borders  thereof,  to  condemn  such  lands 
as  may  be  necessary  for  its  plant  under  the  power  of 
eminent  domain.  Section  1537  et  seq.  authorize  for- 

63 


eign  corporations,  on  compliance  with  their  provisions, 
to  come  into  the  State  with  all  the  rights  of  domestic 
corporations.  It  is  held  that  a  foreign  corporation 
complying  with  such  provisions,  which  was  authorized 
by  its  character  and  also  by  act  of  Congress  to  build 
a  dam  across  the  Mississippi  River  at  a  rapids,  in  aid 
of  navigation,  and  also  to  utilize  the  water  power  to 
generate  electricity  to  be  transported  and  used  in  dif¬ 
ferent  States,  had  power  to  condemn  land  which  would 
necessarily  be  overflowed  by  the  dam;  such  flowing 
constituting  a  taking  for  public  use. 

A  corporation  organized  to  engage  in  the  business 
of  generating  electrical  power,  to  be  sold  to  others,  is 
not  a  “manufacturing”  corporation  within  the  meaning 
of  a  statute  excepting  such  corporations  from  those 
developing  water  power  on  which  it  confers  the  right 
of  eminent  domain. 

Hagerla  v.  Mississippi  River  Power  Co.,  202  Fed., 
776. 


Duty  to  Instruct  Inexperienced  Servant 

IN  AN  ACTION  for  the  death  of  an  employee  by 
contact  with  electric  wires,  among  which  he  was 
working,  the  defendant’s  manager  admitted  that  the  de¬ 
ceased  had  told  him  his  work  as  a  lineman  had  been 
confined  to  telephone  lines  carrying  electricity  in  harm¬ 
less  quantities  only.  The  manager’s  warnings  of  dan¬ 
ger,  as  shown  by  his  own  testimony,  were  general  in 
their  nature.  It  was  held  that  a  master  who  puts  an 
inexperienced  servant  to  work  in  a  hazardous  position 
among  electric  power  wires  carrying  dangerous  cur¬ 
rents  of  electricity,  without  properly  instructing  him 
in  regard  to  his  duties,  and  without  giving  him  specific 
warning  of  incident  dangers  not  obvious  to  a  person  of 
his  experience  and  understanding,  cannot  justify  such 
conduct  by  showing  that  the  servant  had  represented 
himself  to  be  an  experienced  lineman  in  telephone 
work,  involving  no  danger  from  electricity,  where  the 
master  knew  in  advance  that  the  servant  had  never 
had  any  experience  in  working  among  dangerous  wires. 

Elliott  v.  General  Const.  Co.,  93  Neb.  453,  140 
N.  W.,  1024. 


64 


Municipal  Competition  With  Private  Plant 


IN  AN  ACTION  by  a  light  company  to  enjoin  a  city 
from  issuing  bonds  to  establish  a  municipal  light 
system  it  was  contended  that  the  plaintiff  light  com¬ 
pany  had  an  exclusive  franchise,  or  such  a  contract 
for  lighting  that  it  would  bar  the  city  for  50  years 
from  constructing  its  own  system.  It  was  not  argued 
that  the  franchise  by  its  terms  gave  to  the  light  com¬ 
pany  an  exclusive  franchise,  but  it  was  contended  that 
the  contract  with  the  city  for  street  lighting  could  not 
be  violated  by  the  city  by  constructing  a  municipal 
plant.  The  court  answered  this  contention  as  follows : 
First,  there  was  no  contract  with  the  company  by 
which  the  city  was  bound  to  take  street  lights;  and, 
second,  even  if  such  a  contract  existed,  the  city  could 
continue  to  perform  the  obligations  existing  under  the 
contract,  and  at  the  same  time  construct  and  operate 
a  municipal  lighting  system  for  itself.  If  the  fran¬ 
chise  to  the  present  company  was  by  its  terms  exclu¬ 
sive,  such  a  franchise  or  contract  was  prohibited  in 
direct  terms  by  the  Constitution  of  the  State  of  Ne¬ 
braska.  Section  5  of  the  franchise  provided  that  the 
company  agreed  to  furnish  free  lights  of  a  certain  type 
to  the  city  at  four  street  intersections  to  be  selected  by 
the  Council;  and  for  every  arc  light  required  to  be 
taken  by  the  city  payment  should  be  made  on  a  certain 
basis.  It  was  not  disputed,  however,  that  the  light 
company  furnished  the  required  lights  free,  and,  if  the 
city  should  decide  it  did  not  need  the  lights  now  run¬ 
ning,  it  could  order  them  stopped,  and  the  present  com¬ 
pany  would  have  no  option  in  the  matter.  Even  if  it 
were  held  that  the  light  company  had  a  contract  for 
four  arc  lights  upon  the  streets,  a  municipal  plant 
might  be  conducted  by  the  city  by  the  payment  for 
said  lights,  and  there  would  be  no  conflict  between  the 
rights  of  the  present  company  and  the  plant  proposed 
to  be  established.  It  was  also  held  that  the  city  might, 
under  the  Nebraska  statute,  house  the  machinery 
necessary  to  operate  its  electric  light  system  in  the 
same  building  with  the  machinery  used  in  operating  its 
water  plant. 

Minden  Edison  Light  &  Power  Co.  v.  City  of  Min- 
den,  Nebraska  Supreme  Court,  142  N.  W.,  673. 

65 


Electrical  Engineer  as  Expert  Witness 

IN  a  prosecution  for  the  burning  of  a  barn  an  elec¬ 
trical  engineer  introduced  as  a  witness  showed 
that  he  possessed  sufficient  information  to  give  an  opin¬ 
ion,  and  also  testified  that  he  had  taught  the  persons 
later  charged  with  the  arson  that  the  effect  of  cutting 
the  electric  light  wire  would  be  to  put  out  the  lights. 
It  was  held  not  error  to  allow  him  to  testify  that 
those  charged  with  the  crime  would  know  the  effect 
of  cutting  the  wires. 

Anderson  v.  State,  Texas  Criminal  Appeals,  159 
S.  W.,  847. 


Broken  Wire — Notice  to  Company 

I  N  AN  ACTION  against  an  electric  light  company 
I  to  recover  damages  for  personal  injuries  to  a  pedes¬ 
trian,  caused  by  contact  with  a  broken  wire  in  a  high¬ 
way,  an  averment  in  the  statement  that  the  defendant 
had  permitted  its  wire  to  be  for  a  long  time  prior  to 
the  injury  in  a  broken  and  defective  condition  in  and 
along  the  highway,  was  held  to  be  borne  out  by  proof 
properly  admitted  that  if  the  plant  of  the  defendant 
company  had  been  equipped  with  the  necessary  devices, 
commonly  known  and  in  general  use,  those  in  charge 
of  the  plant  would  have  had  immediate  notice  of  the 
breaking  of  the  wire,  and  could  at  once  have  turned 
off  the  current.  It  was  no  defense  to  show  that  the 
defendant  had  been  paid  by  some  customer  to  put  up 
the  wire  in  question,  and  that  the  customer  had  agreed 
to  notify  the  company  in  case  a  dangerous  condition 
should  arise. 

Zinkiewicz  v.  Citizens’  Electric  &  Illuminating  Co., 
53  Pennsylvania  Superior  Court,  572. 


Defective  Appliance  —  Alabama  Statute  —  Duty  of 
Electrical  Companies  as  to  Employees 

ACTION  was  brought  under  the  homicide  provi¬ 
sion  of  the  Alabama  Employers’  Liability  Act 
(Code,  §  3912)  for  the  death  of  a  lineman  who  was 
killed  while  attempting  to  climb  one  of  the  poles  be¬ 
longing  to  his  employer,  the  defendant.  The  complaint 

66 


did  not  allege  in  terms  that  the  defendant  was  the 
owner  of  the  wire  or  pole  which  was  alleged  to  be 
defective,  but  it  did  allege  that  the  wire  and  pole  were 
a  part  of  the  ways,  works,  machinery,  or  plant,  etc.,  of 
the  defendant,  and  so  alleged  in  the  language  of  the 
statute.  In  such  cases  it  is  not  necessary  to  allege  or 
prove  that  the  master  owns  the  defective  machinery 
or  appliances  forming  a  part  of  the  ways,  works,  etc. 
The  master  cannot  avoid  the  duty  imposed  by  the  Ala¬ 
bama  statute,  or  escape  liability  under  that  statute,  by 
using  the  machinery  or  appliances  of  other  masters. 
The  statute  requires  only  that  the  instrumentality  “be 
connected  with,  or  used  in,  the  business  of  the  master.” 

The  duty  which  an  electric  company  employer  owes 
to  its  employees,  and  especially  to  linemen,  was  stated 
to  be  as  follows :  The  duty  is  upon  the  master  to  exer¬ 
cise  reasonable  care  to  the  end  that  his  servants  shall 
have  a  reasonably  safe  place  to  work  and  to  discharge 
their  duties  to  him ;  and  to  exercise  the  same  care  to 
see  that  needed  and  proper  repairs  and  inspections  of 
his  premises  are  made,  so  that  they  may  continue  safe 
for  the  use  of  his  servants.  The  master  also  owes  the 
duty  to  exercise  reasonable  care  to  warn  his  servants 
who  are  without  such  knowledge  of  dangerous  prem¬ 
ises  or  machinery  which  they  are  required  to  use. 
While  the  servant  assumes  the  ordinary  risks  incident 
to  the  employment,  he  is  not  held  to  have  assumed  the 
risk  of  defects  in  the  ways,  works,  machinery,  plant, 
etc.,  of  which  he  had  no  notice  or  knowledge  and  of 
which  he  was  not  chargeable  with  such  notice  or 
knowledge. 

Citizens’  Light,  Heat  &  Power  Co.  v.  Lee,  Alabama 
Supreme  Court,  62  So.,  199. 


Light  Wire  Cut  by  Sagging  Telephone  Wire— Lia¬ 
bility  of  Light  Wire  Owner 

ACTION  was  brought  against  a  village,  owning 
and  operating  its  own  electric  light  plant,  for 
the  death  of  the  plaintiff’s  minor  son,  caused  by  com¬ 
ing  in  contact  with  a  broken  electric  wire  belonging  to 
the  village.  It  was  claimed  that  the  wire  was  burned 
in  two  by  contact  with  an  overhanging  wire  of  a  tele- 

67 


phone  company.  It  appeared  from  the  evidence  that 
the  telephone  wires  were  permitted  to  sag  in  dangerous 
proximity  to  the  electric  light  wires  while  the  latter 
were  not  properly  insulated  and  no  precautions  were 
taken  to  prevent  contact.  It  was  held  that  the  accident 
was  the  result  of  concurring  causes,  the  removal  of  any 
of  which  would  have  prevented  it,  and  hence  the  ques¬ 
tion  of  proximate  cause  was  for  the  jury.  The  village 
maintained  its  plant  for  commercial  as  well  as  munici¬ 
pal  purposes.  It  was  therefore  not  relieved  from  lia¬ 
bility  for  the  negligence  of  its  employees  on  the  theory 
that  the  business  involved  governmental  functions. 
When  a  dangerous  condition  of  the  wires  became  ap¬ 
parent,  it  was  the  duty  of  the  village  officers  in  charge 
of  the  plant,  if  possible,  to  remove  the  danger,  and,  if 
the  situation  was  caused  by  the  telephone  company, 
it  was  the  duty  of  the  village  officers  and  employees  to 
request  them  to  remove  it.  In  this  regard  it  was  held 
that  they  occupied  no  different  position  than  the 
officers  and  employees  of  a  private  corporation  would 
occupy  under  similar  circumstances.  The  fact  that  the 
village  was  first  on  the  ground,  and  its  poles  and  wires 
were  in  position  under  legal  authority  when  the  fran¬ 
chise  for  the  construction  of  the  telephone  system  was 
granted  was  held  to  be  immaterial. 

Sykes  v.  Village  of  Portland,  Michigan  Supreme 
Court,  143  N.  W.,  326. 

END  OF  VOLUME  IV. 


68 


Books  published  by  The  Gage  Publishing 
Company,  Inc.,  New  York,  compiled  from  the 
series  of  articles  that  appear  regularly  in  each 
number  of  the  ELECTRICAL  RECORD : 

ELECTRIC  MOTOR  DRIVE: 

Contains  data  on  the  horse  power  requirements 
of  the  classes  of  machines  used  in  the  various  in¬ 
dustries  and  the  different  methods  employed  in 
driving  them  by  electric  motors 

COMMON  MATERIALS: 

Contains  the  kind  of  details  and  facts  about 
the  raw  or  rough  materials  used  in  the  electrical 
industry  that  is  not  to  be  found  in  other  books, 
and  is  usually  gained  only  by  experience. 

SPECIAL  DEVICES: 

Contains  specific  information  about  manu¬ 
factured  articles  sold  by  the  electrical  trade, 
telling  what  each  article  is  and  what  it  is  used 
for.  (In  picture  book  form). 


RECENT  LEGAL  DECISIONS: 

Contains  digests  in  ordinary  language  of  deci¬ 
sions  affecting  electric  light,  power,  and  street 
railway  plants  and  telephone  companies. 


These  books  are  not  for  sale.  They  are 
offered  as  premiums,  and  are  obtainable 
only  by  subscribing  to  or  advertising  in  the 

ELECTRICAL  RECORD. 


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